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National Legal Center for Immigrants

This webinar provides an overview of the DACA renewal process and highlights other updates to DACA guidance. We share practice tips and respond to common questions about the renewal process and the new Form I-821D.

1. Can DACA recipients travel abroad?

On June 15, 2012, the Secretary of the U.S. Department of Homeland Security issued a memorandum allowing individuals who entered the U.S. as children and meet certain guidelines to apply for Deferred Action for Childhood Arrivals (DACA). U.S. Citizenship and Immigration Services (USCIS) began accepting DACA applications in August 2012 and issuing DACA approvals in September 2012. This article provides updates on a variety of issues related to DACA eligibility and adjudications.

Derivative citizenship under former INA § 321(a) does not require LPR status prior to turning 18, as long as the individual was residing in the United States before age 18, the Second Circuit held on August 12, 2013. Nwozuzu v. Holder (2d Cir. 2013)

On September 26-27, 2013, CLINIC conducted a two-day training in Kansas City on provisional adjudication of unlawful presence waivers. The training included a presentation by Robert Blackwood, Assistant Section Director for Adjudications at the National Benefits Center (NBC), who gave an update on the waiver adjudication process at the NBC and answered questions from training participants. A summary of the information he provided appears below.

This webinar is for non-immigration lawyers, community organizers, Deferred Action for Childhood Arrivals (DACA) recipients, and others who would like to learn about how DACA recipients can travel abroad.

This webinar is for legal service providers and others helping DREAMers apply for Deferred Action for Childhood Arrivals (DACA). One year after DACA’s launch, we will review important DACA developments and explore ways we can continue to improve DACA-related services.

In a recent decision the Board of Immigration Appeals held that after-acquired derivatives are not eligible to be considered “grandfathered” for purposes of eligibility for section 245(i) adjustment of status. Matter of Estrada, 26 I&N Dec. 180 (BIA 2013). This decision clarifies but is consistent with prior USCIS memos interpreting this provision.

On January 3, 2013, the USCIS finalized its regulation regarding the adjudication of waivers for those who are consular processing and would be triggering the unlawful presence ground of inadmissibility. The rule provides a process by which the agency will adjudicate these waivers before the applicants leave for their immigrant visa interview. The procedure would be available only to immediate relatives who are inadmissible based on unlawful presence – and no other grounds – and who can establish extreme hardship to a qualifying U.S.

Children who have been the victims of abuse, abandonment or neglect are among the most vulnerable immigrants in our society. These children may qualify for Special Immigrant Juvenile Status (SIJS), a pathway to becoming a lawful permanent resident. The presenters discuss the eligibility requirements for SIJS as well as the procedures for applying both affirmatively and defensively in removal proceedings. The presenters for this webinar are Sarah Bronstein and Kristina Karpinski, Training and Legal Support Attorneys with Catholic Legal Immigration Network.

Salvadorans who have already been granted Temporary Protected Status (TPS) are eligible to live and work in the United States for an additional 18 months and continue to maintain their status. The extension of TPS for nationals of El Salvador was effective from March 9, 2012 and will remain in effect through September 9, 2013. Nationals of El Salvador who have been granted TPS previously must re-register during the current re-registration period, which began January 9, 2012 and will remain in effect through March 12, 2012.

Only Salvadorans granted TPS and who re-registered for TPS during the prior re-registration periods, have been continuously physically present in the United States since March 9, 2001, and have continuously resided in the United States since February 13, 2001 may re-register. Certain nationals of El Salvador may be entitled to late initial registration. See INA § 244(c)(2) for grounds of inadmissibility that may apply.

Salvadoran TPS re-registrants must send their applications to the appropriate USCIS office, which is dependent on where they are currently residing. Applicants residing in the following states will mail their application to U.S. Citizenship and Immigration Services, Attn: TPS El Salvador, P.O. Box 8635, Chicago, IL 60680-8635: Connecticut, Delaware, Florida, Georgia, Illinois, Indiana, Kentucky, Maine, Maryland, Massachusetts, Michigan, New Hampshire, New Jersey, North Carolina, Ohio, Pennsylvania, Rhode Island, South Carolina, Vermont, Virginia, Washington D.C., and West Virginia.

Brief Description of Job: Staff Attorney is responsible for providing consultations and immigration related services to agency clients; required to represent clients before the U.S. Citizenship & Immigrations Services and Immigration Court. Must be able to prepare and/or oversee all types of immigration cases. In conjunction with Immigration Coordinator, provides in-service training to staff on immigration related skills and knowledge; assists in the development and expansion of immigration services throughout Central Florida. Interfaces with other legal professionals and organizations, attends meetings as assigned and represents the program as directed by Immigration Coordinator; presents immigration related workshops for the immigrant community within the Diocese of Orlando (some travel required).

Minimum Qualifications: Requires completion of recognized Jurisprudence Degree (J.D.), Florida Bar Membership. Knowledge and experience in immigration law. Attorney must have the ability to work with clients from different cultural backgrounds. Bilingual communications skills in both English and Spanish are required.

Additional Qualifications: Must be proficient in Microsoft Office Suite including Excel, Word, Access, PowerPoint and Outlook. Have ability to prioritize, coordinate, multi-task and take initiative, work independently, remain organized and thrive in a detail-oriented environment; function as a member of a team, and be dependable. All applicants will be background screened. In addition a valid Florida driver’s license with a clean driving record required. Consideration given to Florida Bar members only

Affiliates may find the Federal Trade Commission’s (FTC) new “Who Can Help Me?” cards (wallet size that cleverly expands into a 8” by 14” paper) in English and Spanish an important resource to distribute to clients. This pocket-sized fold-out flyer teaches consumers how to spot and avoid scams that target immigrants. The resource also provides information on how to report an immigration scam.

The USCIS announced that effective January 1, 2012, the filing locations for I-130s will change from the Chicago Lockbox to one of two lockboxes, depending on where they reside in the United States. This new change only affects stand-alone I-130s. Those filing the I-130 together with the I-485 will continue to mail them to the Chicago Lockbox at USCIS, P.O. Box 805887, Chicago, IL 60680-4120. Those residing abroad will continue to file them with the overseas USCIS office having jurisdiction over the area where they live or with the Chicago Lockbox at USCIS, P.O. Box 804625, Chicago, IL 60680-4107.

The USCIS published a Notice of Intent for proposed rulemaking in the Federal Register on January 9, 2012. This notice outlined the agency’s proposed plan to transfer the adjudication of certain I-601 waiver applications from USCIS overseas to stateside processing. This adjudication would take place before the applicant leaves for consular processing, thus eliminating the waiting time abroad and the uncertainty of the adjudication outcome. Those applicants whose waiver is provisionally approved could then continue with immigrant visa processing at the U.S. consulate abroad; those who are denied would likely choose to abandon the process. The proposed pre-adjudication procedure is not in effect yet and will likely not go into effect until the end of the year.

When a proposed regulation is published, perhaps this spring, it will contain a 60-day notice and comment period. CLINIC will be circulating model comments and encouraging affiliate programs to submit their own formal response. The USCIS announcement has caused media attention and interest in the immigrant community. CLINIC will also be providing further information, including sample community education materials. Below is a short summary and analysis of the Federal Register notice.

1. The pre-adjudication policy would apply only to immediate relatives, i.e., spouses, parents, and unmarried children under 21 of U.S. citizens. Those in the preference categories (spouses and children of permanent residents; married children or children over 21 of U.S. citizens; and siblings of U.S. citizens) would not be covered and would continue to be subject to the current waiver filing requirements. In other words, they will file their I-601 waiver after being formally refused an immigrant visa by a consular official and that waiver will be adjudicated by an overseas USCIS office. It is unclear at this time whether the agency is likely, or could be convinced by the submission of comments, to expand this to cover all family preference categories. This proposed change will also have limited applicability to parents of U.S. citizens over 21, since they will likely lack the qualifying relative.

2. The pre-adjudication procedure would apply only to immediate relatives who are filing an I-601 application to waive the unlawful presence ground of inadmissibility that would be triggered by the immigrant visa applicant’s departure for the consular interview. Those who are subject to inadmissibility based on other grounds, such as fraud, health, or criminal conduct, will be subject to the current waiver filing requirements. It is also important to remember that family members who have triggered the “permanent bar” under INA § 212(a)(9)(C), based on more than one year of unlawful presence followed by a departure and illegal reentry, cannot file a waiver until they have departed and spent 10 years outside the United States. It is unclear at this time whether the agency is likely, or could be convinced by the submission of comments, to expand this to cover other grounds of inadmissibility.

3. The anticipated pre-adjudication procedure would apply only to immediate relatives who are basing it on extreme hardship to a U.S. citizen parent or spouse, not a permanent resident alien parent or spouse. Such a limitation appears arbitrary, and CLINIC will be advocating for expansion to include all qualifying relatives as that term is currently defined.

4. The waiver would be filed after the I-130 petition is approved and the case file has been forwarded to the National Visa Center, which controls consular processing. The immigrant visa applicant would likely file the waiver at one of two designated USCIS Service Centers and pay the filing fee (currently $585). All waiver applicants will be screened through existing databases based on their names and biometrics to see if they are subject to other grounds of inadmissibility. The agency is considering the creation of a new waiver form to distinguish it from the filing of an I-601.

5. If the waiver is granted by the USCIS Service Center, it would be on a provisional basis. This means that the consulate reserves the right to question the immigrant visa applicant, review current data bases, and investigate for any other possible grounds of inadmissibility that were not previously identified. But it is anticipated that denial of an immigrant visa after the waiver has been provisionally granted would be rare.

6. If the waiver is denied by the USCIS Service Center, the applicant would be subject to the current USCIS policy on issuance of a Notice to Appear, which commences removal proceedings. According to the November 7, 2011 USCIS memo titled “Revised Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Removable Aliens,” the USCIS will issue NTA’s when there is a finding of fraud in the record. The memo does not indicate if the nature of the fraud will be considered, but simply states upon a finding of fraud, an NTA will be issued. In addition, an NTA will be issued if the applicant is under investigation for, has been arrested for, or has been convicted of an “egregious public safety” crime. These include aggravated felonies, such as murder, rape, sexual abuse of a minor, firearms trafficking, crimes of violence for which a term of imprisonment for a year or more has been imposed, ransom, child pornography, alien smuggling, or offenses relating to peonage or slavery. In addition, NTAs will be issued to human rights violators and those where the alien reentered the United States after an order of removal subsequent to a conviction for a felony where an I-212 has not been approved.

In the case of non-egregious public safety criminal cases, the USCIS will complete adjudication of the waiver and refer the case to Immigration and Custom Enforcement (ICE). ICE will then decide whether or not to issue an NTA. It will make its decision based on the “totality of the circumstances” and existing priorities and guidelines on the exercise of prosecutorial discretion. The totality of the circumstances includes factors such as the severity of the crime, time since the crime was committed, additional criminal conduct, evidence of rehabilitation, immigration history, length of presence in the United States, and contributions to society. The USCIS will not issue an NTA if ICE declines to do so.

Therefore, in the routine case involving an applicant with no serious criminal conduct, if the waiver for unlawful presence is denied, the applicant will not be put into immigration proceedings. However, practitioners will need to screen their clients well to determine if they are subject to any other grounds of inadmissibility, including prior orders of deportation.

7. The proposed change does not affect current requirements for eligibility for the waiver of unlawful presence, nor does it modify the standard of extreme hardship to a U.S. citizen spouse or parent. Those applicants who are provisionally approved would still have to consular process if they are not otherwise eligible for adjustment of status. The proposed change would not affect pending waiver applications. In other words, those who have left the country and are waiting abroad for their waiver to be approved by the USCIS will be subject to the current procedure. This change, however, will likely discourage those immediate relatives who are in the consular process pipeline and will be scheduled for an immigrant visa soon from proceeding abroad if they would be eligible for this pre-adjudication process.

Church World Service/Lancaster Legal Immigration Program, located at 308 E. King Street in Lancaster, PA. Janet Tisinger is the Program Director and a BIA partially accredited representative. Sheila McGeehan and Beth May are partially accredited representatives, and Melissa Engle is the program’s Legal Outreach Worker (BIA partial accreditation pending).

On January 11-12, 2012, CLINIC and the United States Conference of Catholic Bishops (USCCB) hosted a conference to address the most pressing immigration enforcement issues states will face as they begin their 2012 legislative sessions. The conference was attended by over 230 people from 43 states who work on behalf of immigrants in their communities. Participants included bishops, priests, men and women religious, Catholic advocates, communications professionals and individuals who serve immigrants in their communities. They had a chance to speak directly with immigration experts and Department of Homeland Security and Department of Justice officials and came away with the most up-to-date information as well as tools and strategies to bring home to their communities.

Most Reverend John C. Wester, Bishop of Salt Lake City, welcomed participants to the conference, saying that he believes “that the work the church is doing on immigration on a state and local level – both in the past and in the months ahead – could make all the difference in how our nation eventually solves” this country’s immigration problems. He described his role in signing the Utah Compact – for which business, religious, law enforcement and political leaders came together to outline a common set of principles – to guide the state’s decision makers on decisions relating to immigration and immigrants.

Bishop Wester thanked attendees for the work they do on behalf of immigrants and urged them to continue to “fight the battle locally and remain a voice of faith in the debate.”

Panels at the event included discussions of:

Immigration laws and their impact on the Church, with experts on harboring, transporting, barriers to marriage, separation of families, and the impact on clergy and seminarians;

Federal and state immigration enforcement partnerships with representatives from the Department of Homeland Security;

State immigration laws, including E-Verify, education, public benefits, and omnibus enforcement measures;

Communicating the message;

Lessons learned from states that have already faced immigration legislation; and

Proactive strategies for the future.

Look for materials from the conference, including video of some of the panel sessions, on CLINIC’s website soon!

Public charge can form the basis for denying admission to both intending immigrants and nonimmigrants. It may be used by Department of State (DOS) officials in their adjudicating immigrant and nonimmigrant visa applications and by the United States Citizenship and Immigration Services (USCIS) in their adjudicating adjustment of status applications. It is also a ground of deportation and can form the basis for removing an alien, although this is rarely employed. Public charge is not a factor in applications for naturalization, although applicants who have committed of welfare fraud could be denied for lack of good moral character requirement. This article will examine the public charge ground of inadmissibility and deportability with an emphasis on providing practical advice for overcoming this potential obstacle. It will attempt to answer the question of whether public charge is a significant problem for the intending immigrant due to the mandatory submission of affidavits of support and the emphasis on the sponsor’s income.

Brief History of the Public Charge Ground The public charge ground of inadmissibility dates back to the first general immigration law. In1882 Congress excluded persons who were “idiots, lunatics, convicts, and persons likely to become a public charge.” In 1891, Congress added the term “paupers” to the list of persons subject to exclusion. A few years later, the Immigration and Naturalization Service (INS) Commissioner interpreted these provisions as authorizing the imposition of a poverty test to aliens seeking entry – they had to show that they possessed at least $25 in cash, plus sufficient funds to purchase a ticket to their final destination. Although that requirement was later rescinded, both the State Department and Immigration Service officers have been empowered for over a century to exclude persons who in their opinion were unable or unwilling to support themselves and other nuclear family members.

In 1915 the Supreme Court defined a public charge as a person who “by reason of poverty, insanity, disease or disability would become a charge upon the public.” For the first hundred years, the public charge ground of inadmissibility was used more than any other ground to deny entry or adjustment of status to intending immigrants.

Definition of Public Charge The term “likely to become a public charge” has never been defined in the statute or regulations. As a result, DOS and INS officers exercised broad powers in interpreting this provision. Unfortunately, they sometimes applied different standards and imposed inconsistent requirements. For at least the two decades preceding the 1996 immigration law, most officers required the intending immigrant to demonstrate the ability, through an offer of employment or demonstrated work history, to earn at least 100 percent of the poverty income guidelines for their household size. During that period it was common for officers to require low income applicants to submit an affidavit of support, Form I-134. This was typically executed by the U.S. citizen or LPR petitioner or a close family member. These affidavits stated that the sponsor would support the intending immigrant for a three-year period, although several courts held them to be legally unenforceable by entities seeking reimbursement for the value of public benefits provided. Sponsors supplemented these affidavits with income tax returns and bank statements.

But in the mid-1990, some officers required additional proof that the intending immigrant and all family members – including U.S. citizen children – demonstrate that they were not receiving and had not received any form of public assistance. If they had received it, some officers conditioned the granting of their application on proof that they had repaid the value of these public benefits. This resulted in some U.S. citizen children living in mixed households being removed from supplemental food and health-related programs because the parents feared that receipt of these benefits would jeopardize their immigration status or eligibility for immigration benefits.

This lack of clarity and uniformity – and even overreaching on the part of some officers – resulted in the INS’s promulgating a memorandum, field guidance, and a proposed rule in the Federal Register in 1999 that clarified the meaning of the term “public charge.” The Department of State issued a cable to its consulates providing similar instruction. That cumulative guidance has been helpful in establishing clear standards for interpreting this ground of inadmissibility and deportability. It has also been helpful in clarifying the relationship between public charge and the receipt of certain public benefits. Regrettably, this formal guidance has not been strictly followed by all USCIS offices or consular posts.

According to the memorandum, field guidance, and proposed rule, an alien has become a public charge for inadmissibility or deportability purposes when he or she has become “primarily dependent on the government for subsistence, as demonstrated by either (i) the receipt of public cash assistance for income maintenance or (ii) institutionalization for long-term care at government expense.” The Service defined the term “public cash assistance for income maintenance” as including only three forms of benefits: (1) Supplemental Security Income (SSI) for the aged, blind, and disabled; (2) Temporary Assistance for Needy Families (TANF) cash assistance; and (3) state and local cash assistance programs, usually known as general relief or general assistance. Programs that support aliens who are institutionalized for long-term care, including Medicaid, are typically provided to those in a nursing home or mental health institution. The proposed rule explains that “institutionalization for short periods of rehabilitation” does not fit this definition.

The intending immigrant’s receipt of non-cash benefits should not be taken into account when considering whether he or she is likely to become a public charge. This would include the following programs:

Programs that pay benefits that are “earned,” such as unemployment insurance, worker’s compensation, or Social Security retirement, disability, and Medicare, which are based in part on employee contributions, should also not be considered. Nor should government pensions, veterans’ benefits, or state and local programs that provide a health-related benefit. After passage of the Welfare Act in 1996, and even well before for some programs, aliens without lawful immigration status have been precluded from receiving most of these non-cash benefits.

Furthermore, receipt of benefits – including one of the three designated cash assistance programs – by household members other than the intending immigrant should not be considered by the DOS or INS/USCIS officer. For example, receipt of cash benefits by the alien’s parents or children should not be considered, nor should those received by the sponsor completing an affidavit of support. The only caveat is when the family is reliant on the public benefit as its sole means of support. In those situations, the intending immigrant may be considered to have received the benefit as well. Officers should never condition applicants’ admission or adjustment of status on the repayment of benefits received.

The May 1999 INS memorandum, field guidance, and proposed rule also point out that the determination of the likelihood of becoming a public charge is a prospective test and should include consideration of all of the factors set forth in the statute, as well as prior administrative decisions and regulations implementing the Immigration Reform and Control Act of 1986. These make up what is called the “totality of the circumstances test,” and are explained more fully below. Any officer who intends to deny an application based on public charge must weigh six statutory factors and “specifically articulate the reasons for the officer’s determination.” Past or even current receipt of one of the three cash assistance programs does not automatically mean that the alien is likely to become a public charge in the future. Rather, it is just one of the factors taken into consideration when making the forward-looking determination. When the applicant received the benefits and for how long a period will determine how much weight these factors should be given. Past receipt by the intending immigrant of non-cash benefits (other than institutionalization for long-term care), however, should not be considered.

Public Charge as Applied Today The USCIS and State Department continue to apply a two-part test, which looks at both the intending immigrant’s likelihood of becoming a public charge and the sponsor’s likelihood of fulfilling his or her financial obligations.

The 1996 immigration law codified the totality of the circumstances test that had traditionally been applied to immigrant visa and adjustment applicants by INS and Department of State officials. According to the statute, those officials must take into consideration the following factors related to the intending immigrant: (1) age; (2) health; (3) family status; (4) assets, resources, and financial status; and (5) education and skills. With respect to age, consular officials are instructed to consider any skills that applicants over the age of 16 possess that would make them employable in the United States. They should also consider any health-related ailment that would preclude or hinder the alien from working. If the alien is married and/or has children, the official should weigh the number of dependents he or she is responsible for supporting. With respect to work experience, the official should examine “the applicant’s skills, length of employment, and frequency of job changes” to determine whether the applicant will become self-sufficient shortly after entering the United States.

For almost the last half century, the general rule in determining public charge has been that intending immigrants who are able-bodied and employable will not be found to be inadmissible under this ground. The seminal case in this area held that “a healthy person in the prime of life cannot ordinarily be considered likely to become a public charge, especially where he has friends or relative in the United States who have indicated their ability and willingness to come to his assistance in case of emergency.” In contrast, however, an elderly person who has been receiving Supplemental Security Income (SSI), may have difficulty satisfying the test.

The last reported case discussing public charge, decided over 20 years ago, analyzed the factors and applied them generously to a legalization applicant. In that case, the applicant was a 33-year old mother of three, who had little work experience and whose family had received welfare payments for four years. Nevertheless, the Commissioner found that in light of her age, her ability to earn a living, and the reason for her past unemployment, which was to care for her pre-school-age children, she was not likely to become a public charge.

The same section of the 1996 law that codified the factors that must be considered also mandated the filing of the legally-enforceable affidavit of support. Since implementation of that requirement, the focus has shifted away from the intending immigrant and onto the sponsor. The sponsor must now demonstrate the ability to maintain the intending immigrant at a certain financial level through the submission of an affidavit of support, last year’s income tax return, and possibly other supporting documentation. Most officers do not consider the five factors indicated above or even the intending immigrant’s likelihood of becoming a public charge if the sponsor has submitted an affidavit of support that meets the minimum requirements. The State Department has acknowledged that the submission of Form I-864 “should normally be considered sufficient to meet the INA 212(a)(4) requirements and satisfy the ‘totality of the circumstances’ analysis.” In other words, the submission of the affidavit of support should obviate the need to weigh the five factors. Only in “an unusual case” or in situations where the applicant is exempted from submitting an affidavit of support (e.g., because he or she submits an I-864W based on 40 qualifying quarters or derivation of citizenship) should the five factors be considered.

Even in cases where the applicant has submitted an affidavit of support that satisfies the financial requirements, the USCIS and State Department officers have the discretionary power to require more proof that the sponsor has the financial ability to support the intending immigrant. They may exercise that in cases where there is a “significant public charge concern.” This has been defined as cases where the intending immigrant has advanced age, serious health problems, or mental or physical disabilities. Physical disabilities and handicaps or mental disorders will likely provide a basis for closer scrutiny by USCIS and State Department adjudicating officers. Courts in the distant past have upheld findings of inadmissibility for public charge due to deafness, heart disease, blindness, and senility.

One would assume that if the intending immigrant provides a convincing affidavit of support from a sponsor of adequate means, who will now be legally obligated to maintain the immigrant at a certain level above the poverty line, that the submission should satisfy the public charge test. This is bolstered by the fact that 1996 changes in welfare law now make most LPRs ineligible for federal means-tested benefits for their first five years, and perhaps well after that period, due to the enforcement of expanded sponsor-to-alien deeming of income rules. In other words, restrictions in welfare eligibility, coupled with legal enforceability of sponsorship agreements, should make it almost impossible for new immigrants to “become a charge upon the public,” even if they are old, in poor health, or unemployable. Hence, the ability of the intending immigrant to support himself or herself should be afforded less concern compared to the financial status of the sponsor.

However, in certain cases the USCIS and State Department continue to apply a two-part test that looks both at the sponsor’s ability and likelihood of fulfilling his or her financial obligations and at the intending immigrant’s likelihood of becoming dependent on cash assistance programs. In other words, the traditional public charge analysis is still applied in those situations, but it is commingled with one directed at the income and resources of the sponsor.

The Foreign Affairs Manual (FAM) has provided additional guidance on interpreting the public charge ground of inadmissibility. It states that the consular officer must not base a determination that the applicant is likely to become a public charge on “what if” type considerations. The determination must be based on “reasonable future projection of the alien’s present circumstances...which make it not merely possible, but likely, that the applicant will become a public charge.”

For example, it advises consular agents to be “flexible,” and to predicate public charge decisions on existing, specific facts. Applicants with income or funds that make them at or above the poverty income guidelines should be presumed admissible under INA § 212(a)(4); with those below the guidelines there arises a rebuttable presumption of inadmissibility. Public charge findings “should be based on a reasonable projection of present circumstances and officers should point to a factual set of circumstances which make it not merely possible but likely that the alien will become a public charge.”

A 1997 State Department directive instructs consular posts on the new affidavits of support and their use in determining public charge. It states that the mere fact that the sponsor has met the minimum requirement does not preclude a finding that the visa applicant is inadmissible as a public charge. Even if the affiant meets the minimum requirements, a consular officer may require additional evidence of income or assets, or may require a joint sponsor, if the demonstrated resources do not appear adequate to prevent the applicant from becoming a public charge. The memo states that if the applicant and his or her spouse or dependents are in good health and appear to be employable, an affidavit of support that meets the minimum income level should generally be considered adequate. If not, "closer scrutiny of the sponsor's ability to provide the requisite level of support may be necessary."

Aliens Not Subject to Public Charge Certain categories of aliens are not subject to the public charge ground of inadmissibility and thus are not subject to the affidavit of support requirements. These include the following: • Refugees and asylees • Amerasians • Aliens adjusting under the Cuban Adjustment Act • Aliens adjusting under the Nicaraguan Adjustment and Central American Relief Act • Aliens adjusting under the Haitian Refugee Immigration Fairness Act • Special immigrant juveniles applying for adjustment of status • Applicants for cancellation of removal • Lautenberg parolees seeking adjustment of status • Applicants for registry.

Do not confuse the category of aliens not subject to public charge with those who are subject to public charge but are exempt from filing a binding Form I-864. For example, the affidavit of support requirements are not applicable to widows or widowers applying for LPR status based on a prior marriage to a U.S. citizen. However, the public charge ground of inadmissibility still applies. The same is true for victims of domestic violence immigrating under the Violence against Women Act (VAWA), although the USCIS does not consider benefits obtained while the applicant was in deferred action status. Other aliens exempt from the I-864 requirements but still subject to public charge would include fiancé(e)s, diversity visa lottery winners, parolees, and returning LPRs. They may be asked to submit the non-binding Form I-134, Affidavit of Support.

Public Charge Ground of Deportation Although public charge also remains a ground of deportation, given the numerous factors that must be established by the Immigration and Customs Enforcement (ICE), it is rarely used as a way to remove an alien from the country.

Permanent resident aliens can only be removed for becoming a public charge if all of the following conditions are satisfied: (1) they became a public charge within five years of the date of last admission; (2) they received public cash assistance for income maintenance purposes; (3) the need for benefits was based on circumstances that existed before they entered; (4) the public cash assistance they received created a legal debt or obligation to repay; (5) they received a demand to repay the debt from the agency within five years of admission; and (6) they refused to repay it. As mentioned earlier, most LPRs are barred from receiving SSI and TANF benefits for a considerable period of time. More importantly, these federal cash assistance programs do not create legal debts to the recipients. The only benefit programs that could create a debt are state general relief or general assistance. In addition to making a demand for payment, the state benefit-providing entity must pursue all possible collection remedies, including filing a court action and seeking to enforce a final judgment.

The 1996 immigration legislation did not change the public charge ground of deportation, and thus it will still be very difficult for the ICE to deport an alien for becoming a public charge. While the affidavit of support creates a legal debt when the sponsored immigrant receives means-tested benefits, such a debt is incurred by the sponsor, not the immigrant.

On December 1, 2011, the 9th Circuit Court of Appeals amended its June 2011 decision in Palacios and eliminated its earlier holding that unlawful presence in the U.S. before April 1, 1997 must be counted for purposes of the “permanent” bar. In its amended opinion, Carrillo de Palacios v. Holder, No. 09-72059 (9th Circuit December 1, 2011), the court backed away from its earlier conclusion that unlawful presence accumulated prior April 1, 1997 in conjunction with a reentry to the U.S. after April 1, 1997 made a person permanently inadmissible under INA § 212(a)(9)(C)(i)(I). Following the amended 9th Circuit decision, unlawful presence can only be accrued as of, but not before, April 1, 1997 for the permanent bar purposes. The amended decision returns 9th Circuit law to that which had been in effect for more than 14 years.

The new Palacios decision reinstates a USCIS and Department of Date (DOS) policy regarding the pre-April 1997 accrual of unlawful presence. In the memo issued by Paul Virtue on June 17, 1997, immigration officers were instructed “No period of unlawful presence in the United States prior to April 1, 1997, is considered for purposes of applying section 212(a)(C)(i)(I) of the Act.” This USCIS policy was reaffirmed in 2009 by another USCIS memo, Donald Neufeld, “Consolidation of Guidance Concerning Unlawful Presence” (May 6, 2009). Similarly, a November 1996 DOS cable summarizing the admissibility provisions of IIRIRA, specifically 212(a)(9)(C), cautioned that “[u]nlawful presence prior to the effective date of Title III-A of Pub. L. 104-208 (April 1, 1997) shall not be counted for purposes of this provision.” “R 200415Z NOV 96, FM SecState WashDC, Cable to All diplomatic and Consular Posts.”

The new Palacios opinion was in response to a petition for rehearing of the court’s decision. An amicus brief by the American Immigration Council, the National Immigration Project of the National Lawyers Guild, and the Northwest Immigrant Rights Project also urged the court to reconsider its decision because it was incompatible with established retroactivity principles and unfairly prejudiced those who departed the U.S. prior to the effective date of IIRIRA. In light of these challenges, the court ultimately amended it prior holding and removed the language regarding pre-April 1, 1997 unlawful presence.

The Palacios decision and the Judulang v. Holder case, also digested in this issue, remind us of the importance of strategically pursuing and appealing decisions that negatively impact immigrants. CLINIC is the proud co-filer, along with World Relief, of an amicus brief written by Ira Kurzban in Judulang v. Holder. In Judulang, the Supreme Court unanimously overturned a 2005 BIA decision, Matter of Blake, declaring that the BIA’s rule was arbitrary, capricious and no more reliable than tossing a coin in the air. Using the “rationale” established in Matter of Blake, untold immigrants, including legal permanent residents, were deported. Both Palacios and Judulang demonstrate that careful and persistent challenges to unfair rules can result in improvements in our immigration laws.

The Ninth Circuit Court of Appeals has held that parole as a Special Immigrant Juvenile qualifies as an admission “in any status” for eligibility for cancellation of removal. In that case, Jorge Raul Garcia entered the United States without inspection in 1992 when he was eight years old. In July 1994, a California court approved a dependency petition that had been filed by the state. The state then filed a I-360 petition to classify him as a Special Immigrant Juvenile and an I-485 application for adjustment to permanent residence. The petition and application were approved in 2000 (almost six years later!) and he became an LPR. His I-181, Memorandum of Creation of Record of Lawful Permanent Residence, indicated his “year admitted” as 1992.

Mr. Garcia was convicted of two minor theft convictions in 2005: stealing a bicycle and shoplifting. DHS instituted removal proceedings and Mr. Garcia applied for cancellation of removal under INA § 240A(a), for LPRs. DHS claimed Mr. Garcia lacked the required seven years of continuous residence, arguing that the period began in 2000 when he became a permanent resident. Mr. Garcia argued that he was deemed paroled in the United States upon the filing of the SIJS-based application in 1994, more than seven years before his second conviction.

The Ninth Circuit agreed with Mr. Garcia. It held that “admitted in any status” in broader than the statutorily-defined term “admitted.” There are instances where a person is “admitted” for the purposes of INA § 240A(a)(2) without been inspected and authorized to enter at the border. The court held that the grant of SIJS-based parole qualifies as one of the alternative methods of being “admitted in any status” for cancellation purposes. Mr. Garcia accrued the required seven years of continuous presence after being “admitted in any status.” Garcia v. Holder, 659 F.3d 1261, No. 08-73004 (9th Cir. No. 2, 2011).

The Third Circuit Court of Appeals has held that an alien’s due process rights were violated when an Immigration Judge (IJ) ceased functioning as neutral arbiter. In that case, Vasil Abulashvili overstayed his visitor visa. In removal proceedings, he applied for asylum, withholding and protection under the Convention Against Torture. At the merits hearing, the trial attorney was “woefully unprepared.” A few minutes into his questioning, the IJ took over the cross-examination and asked a total of 87 questions. She defended doing so by saying that “in order to afford the respondent with due process and an opportunity to explain why his testimony in court is different from his written application, someone needed to ask the respondent about it.” She ultimately found his asylum claim was not credible and denied it. The BIA affirmed, rejecting the claim that his due process rights had been violated by the IJ’s questioning, saying she had merely been “ferreting out … the facts.”

The court overruled, first holding that the IJ’s and BIA’s adverse credibility determination was not supported by substantial evidence. It appeared, the court said, that the IJ and BIA did not fairly consider the entire record and Mr. Abulashvili’s explanations of the purported discrepancies.

The IJ had every right to exercise her discretion to question Mr. Abulashvili, the court said, but she had “a responsibility to function as a neutral, impartial arbiter and must refrain from taking on the role of an advocate for either party.” Here, the IJ interjected herself into the proceedings to the extent of assuming the role of opposing counsel, the court said. After the IJ began cross-examining Mr. Abulashvili, the government attorney did not follow up with a single question, the court noted. “Why would he since an Immigration Judge was now doing his job for him? … It is not the IJ’s function to protect the government by becoming its counsel when its own counsel is not prepared.”

By stepping into the role of the attorney for the government, the IJ gave the strong impression that she was on the government’s side, the court said. The explanation that she was merely “ferreting out the facts” would be more plausible if the interventions were as likely to favor the respondent as the government, and if the record established that the IJ fairly considered the entire record before making negative credibility determinations, the court concluded. Abulashvili v. Attorney General, __ F.3d __, Nos. 08-2756 & 09-2560, 2011 U.S. App. Lexis 22835 (3d Cir. Nov. 15, 2011).

A recent BIBA decision held that the government bears the burden of proving, by clear and convincing evidence, that a returning lawful permanent resident is to be regarded as an applicant for admission under INA §§ 240(c)(2)(A) and 101(a)(13)(C), and is therefore subject to the inadmissibility ground for removal. The regulatory presumption benefitting LPRs who present a valid unexpired Permanent Resident Card (Form I-551) after a temporary absence of less than one year also supports this holding. 8 CFR § 211.1(a)(2). Also, a conviction of accessory after the fact is a crime involving moral turpitude if the underlying or substantive crime is itself a crime involving moral turpitude. Matter of Rivens, 25 I&N Dec. 623 (BIA Oct. 19, 2011)

In a second case, the BIA held that even if a Notice to Appear (NTA), Form I-862, fails to provide the time and date of the hearing, personal service of the NTA on the respondent terminates the accrual of continuous residence under the “stop time” rule of INA § 240(A)(d)(1).

This is so even though the statute, INA § 239(a)(1)(G), specifies that the NTA must include the “time and place at which the proceedings will be held.” This provision is “simply definitional,” the BIA said. The best reading of the statute as a whole is that Congress intended to specify the document that DHS must serve on the person to trigger the “stop-time” rule. [But see, Dababneh v. Gonzales, 471 F.3d 806, 809-10 (7th Cir, 2006), distinguished by the BIA, which said that the “stop-time” rule cut off the accrual of physical presence once the DHS served him with both the NTA and the notice of hearing]. Matter of Camarillo, 25 I&N Dec. 644 (BIA Dec. 2, 2011).

CLINIC and the United States Conference of Catholic Bishops are hosting a conference on state and local immigration issues! The conference will be held in Salt Lake City, Utah from January 11 through13, 2012. We will discuss methods for opposing enforcement initiatives and supporting comprehensive immigration reform. Workshops will include:

strategies for communications and messaging;

coalition building; and

parish organizing and education

On topics such as:

comprehensive anti-immigrant legislation;

state cooperation with E-Verify;

education, health care and public benefits; and

the impact of these immigration measures on the Church’s mission.

Confirmed speakers include John Sandweg, Counsel to DHS Secretary Napolitano. Registration costs of $250/single room or $150/double room include hotel accommodations, all meals, conference materials, a reception on January 11 and another evening event on January 12.

A new practice advisory on working with clients with mental competency issues has been released by the American Immigration Council's Legal Action Center (LAC) in collaboration with The University of Houston Law Center Immigration Clinic.

In May, the Board of Immigration Appeals (BIA) issued a precedent decision in Matter of M-A-M. The respondent was represented by the University through CLINIC’s BIA Pro Bono Representation Project. The decision set forth a framework for immigration judges to follow in cases involving individuals with mental competency issues.

The LAC's practice advisory provides a detailed analysis of that decision - the first published decision from the BIA in nearly fifty years to provide substantive guidance on hearings involving respondents with mental disorders - and offers strategic advice on how to address issues that may arise in the context of representing such individuals.

In order to centralize and streamline receipting of citizenship and naturalization forms, USCIS has made changes to the filing locations of certain forms.

On Oct. 30, 2011, USCIS began accepting Forms N-336, N-600 and N-600K at its Phoenix Lockbox facility and Form N-300 at its Dallas Lockbox facility. Until Dec. 2, 2011, applications filed at field offices were forwarded to the appropriate lockbox. After December 2, all applications erroneously filed at field offices will be returned to applicants to re-file with the proper lockbox.

Lockbox filing is a central and secure way to deposit fees and do a preliminary review of applications for required data, correct fee, and applicants’ signatures. Other filing tips from USCIS include:

Send a separate fee for each application being filed.

Make sure to use the proper version of the form, noted on the bottom right-hand corner. (For the N-600 and N-336, the current version is dated 10/30/11. No prior versions are accepted. For the NN-600K, the current version is 8/1/11, and no prior versions are accepted.)

Make sure to complete required fields fully.

Remember that a form G-1145 can be filed alongside your application to provide USCIS with an email address or phone number to get instant notification of form acceptance. This is a free service.

To request that the filing fee be waived, file Form I-912 along with the underlying application.

To request that an application be expedited, contact your local field office – not the lockbox. That office will handle the expedite request.

In response to stakeholder feedback, EOIR has announced that it will reinstate the ability of callers to check the status of multiple cases in one call. Starting on December 12, callers will be able to press the “pound” key (#) to return to the main menu and enter additional alien registration numbers. In addition, callers will be able to press the “star” key (*) to skip the maintenance message at the beginning of the recording.

As of November 30, 2011, the California and Vermont service centers will once again send all original notices, including I-797 approval notices, to the representative of record according to the G-28 on file. The Texas and Nebraska service centers will do the same on or before December 5, 2011.

Section 212(c) of the INA provides relief from removal to law permanent residents who are deportable for certain criminal convictions. There are many restrictions regarding eligibility for this form of relief, but at a minimum, the applicant must meet the following criteria:

Is an LPR or was an LPR prior to receiving a final order of deportation or removal;

Had seven consecutive years of lawful unrelinquished domicile in the United States prior to the date of the final administrative order of deportation or removal, or, if the person does not have a final order, had seven years by the time that he or she applies for § 212(c) relief;

Pled guilty or nolo contendere to a deportable offense through a plea agreement made before April 1, 1997; and

Was otherwise eligible to apply for § 212(c) at the time the plea was made.

In addition, the LPR charged under deportability must establish that there is a comparable ground of inadmissibility in order to be eligible to seek an INA § 212(c) waiver. Under this rule, an LPR charged with crime-based deportability is barred from seeking this waiver if there is no “comparable ground” of inadmissibility. In re Blake, 23 I&N Dec 722 (BIA 2005). As applied by the Board, this test precludes eligibility where the charged deportability ground covers more or fewer offenses than any inadmissibility ground, even if the LPR’s offense falls within a ground of inadmissibility. In Blake, for example, this doctrine was used to defeat eligibility for a § 212(c) waiver for an LPR found deportable for an aggravated felony sexual abuse of a minor offense even though such an offense would trigger inadmissibility as a crime of moral turpitude.

In Judulang v Holder, 2011 Lexis 9018 (U.S. Dec. 12, 2011), the Supreme Court unanimously rejected the comparable grounds rule as arbitrary and capricious. Mr. Judulang, an LPR since 1974, was found deportable for an aggravated felony crime of violence, based on a 1988 voluntary manslaughter conviction in which he received a suspended sentence of six years. An immigration judge denied Mr. Judulang’s request for a § 212(c) waiver, and this decision was upheld by the BIA, which determined that the crime of violence deportation ground is not comparable to any ground of inadmissibility including the one for crimes of moral turpitude. The BIA’s decision was subsequently affirmed by the Ninth Circuit Court of Appeals.

In its decision, the Supreme Court described the comparable grounds rule as “unmoored from the purposes and concerns of the immigration laws,” permitting “an irrelevant comparison between statutory provisions to govern a matter of the utmost importance – whether lawful resident aliens with longstanding ties to this country may stay here.” Judulang at 21. CLINIC supported an amicus brief submitted in this case and applauds this decision of the Court advancing greater justice and fairness for LPRs.

Immigration and Customs Enforcement issued a memo on November 17th announcing a case-by-case review of the EOIR immigration court docket in each office. This review will include both incoming cases as well as those currently pending in immigration courts. This review will last for two months, until mid-January 2012, at which point the agency will assess the data and case outcomes before taking further action or review. The review is viewed as a further step in implementing the June 17, 2011 Prosecutorial Discretion Memorandum that set forth various factors and criteria to consider when deciding to initiate or continue with removal proceedings. That memo announced plans to review of 300,000 pending cases to determine which ones are appropriate for an exercise of prosecutorial discretion. This most recent memo sets that review in motion as well as provides more detailed guidance to ICE attorneys. The intent of the effort is to direct enforcement and deportation to cases where the respondent poses a threat to public safety and away from those who are students, long-term residents, or have formed families and strong community ties.

On November 4, 2011, the DHS extended TPS for nationals of Honduras and Nicaragua. Nationals from those two countries who have previously registered for TPS are now eligible to re-register for an 18-month extension of their TPS status and employment authorization document (EAD). TPS was scheduled to expire for these persons on January 6, 2012, but the USCIS recently extended TPS eligibility until July 5, 2013. TPS beneficiaries from those two countries who pursue re-registration will also have their EADs automatically extended for six months, or until July 5, 2012.

The 60-day re-registration period began November 5, 2011 and will run through January 5, 2012. To re-register, submit the following documents: Form I-821 (without filing fee); Form I-765 (with $340 filing fee if seeking an EAD or extension unless seeking fee waiver); and biometrics fee of $80 for applicants age 14 and older (unless seeking fee waiver). Applicants filing for a fee waiver should complete and file Form I-912, Request for Fee Waiver, and submit it together with supporting documentation.

Honduran TPS re-registrants should send their applications to USCIS, Attn: TPS Honduras, P.O. Box 6943, Chicago, IL 60680-6943. Nicaraguan TPS re-registrants should send their applications to USCIS, Attn: TPS Nicaragua, P.O. Box 6943, Chicago, IL 60680-6943. If the re-registrant does not need to submit supporting documentation, he or she may file the application electronically by following the instructions on the USCIS website.

What method does your office use to process new client consultations? Read below to learn how two CLINIC affiliates have each created a system that accommodates and meets the needs of their office and their community.

1. How do you currently process and accept new clients seeking the services of your office?

When someone calls or stops by our office, our staff conducts a brief legal screening in order to determine if the person or family’s request matches the organization’s services. We also let them know what services will be available and when they will be available.

If OIS does offer the immigration legal service the client needs, the staff person schedules a consultation with the BIA accredited representative, while also informing the client of the initial consultation fee due at the time of the appointment.

Once the client arrives for the appointment, the intake sheet is completed. At this time the client is informed of his or her rights and responsibilities to the agency, as well as the confidentiality policy. If it is determined that the client’s case will be taken, it is only then that a case number is assigned and the client signs a retainer agreement.

All clients who walk in are required to schedule an appointment for a later date unless the person’s situation is deemed an emergency requiring immediate attention.

2. Why did your office decide to use this approach?

Our office decided to use this approach because of the high number of calls and walk-ins we receive. In order to manage the demand, we needed to develop a concrete system that worked for our office. Now, we have set hours for consultation appointments, which last one hour each. We only make appointments for Mondays and Wednesdays from 1 to 6 p.m. and on Tuesdays and Thursdays from 10 a.m. to 3.p.m. We do not schedule appointments on Fridays or during other business hours so that we have time to complete case work and other tasks.

3. What is the impact of this approach on your program?

This approach has had a very positive impact on the day-to-day operations of our office. Now, we experience less chaos, and the day’s schedule is much more organized and systematic. We have fewer "no-shows" and an increase in initial consultation fees because people understand up front they must come with fees (or their fee waiver request items) in order to receive an appointment.

4. What is the community’s response to this approach?

The community now appreciates and values the appointment, our time, and their time more than when they could simply arrive at our office at any point in the week. I believe we have also increased the level of our office’s professionalism in the eyes of the community.

Also, clients who open cases with our office are motivated after the initial consultation to make follow-up appointments faster, since they know they'll be waiting a week or two before the next available slot.

Walk In-Only Model

Vanna Slaughter

Division Director

Catholic Charities of Dallas, Inc.

Immigration and Legal Services

1. How do you currently process and accept new clients seeking the services of your office?

Our program conducts daily walk-in intake from 7:30 a.m. until noon on a set schedule that includes some Saturdays.

One Monday a month, we ask clients who have “whopper” cases to come in to open their cases on a scheduled pre-paid appointment basis. A "whopper" case can include: 1) large refugee families applying for adjustment of status; 2) multi-beneficiary family adjustment of status cases; 3) I-601 waiver packets; and 4) domestic violence victims' cases that need personal testimonies prepared.

We do our schedule this way for two reasons. First, we want to give staff at least one Saturday off each month. Second, we want to be able to dedicate the entire day for the preparation of big cases, so they don't backlog us during the week.

Each morning at 7:30 a.m. we open the doors and hand out numbers (there is always a line of people waiting). Once everyone is seated we give an intake "charla" explaining how we operate and what to expect.

In our efforts to promote citizenship, we ask anyone present who has come only for US citizenship to come to the head of the line. We then ask everyone to applaud them for making the important decision to become a US citizen.

Before we open the doors, we estimate our capacity for the day. Everyone is usually able to do four to five consultations on any given morning.

2. Why did your office decide to use this approach?

Over the years, we have experimented with various appointment models and they have simply never worked for us. When we used a 100 percent appointment intake model, we had a huge "no show" rate and it severely affected our productivity. We also tried a pre-paid appointment model, but at one point we had appointments scheduled so far out into the future (because of the demand), that it became a worrisome liability concern for us. So, after each attempt we have return to the walk-in model.

3. What is the impact of this approach on your program?

This approach has several advantages. First, the walk-in model does not require us to maintain an appointment schedule. Next, we are able to control on a daily basis the number of potential clients we see and "cut off" the flow when we reach our capacity. Also, clients can choose when to come, including Saturdays, which is our busiest day. Finally, while people are waiting to see staff, we take advantage of their attention and conduct outreach on important topics.

4. What is the community’s response to this approach?

We do receive a few “Suggestion Box” cards complaining about the procedure we use that allows citizenship clients to go to the head of the line, but we believe it sends a positive message to all our clients about the value we place on citizenship. The vast majority of our daily "Suggestion Box" cards are overwhelmingly positive about the ease of our system and the efficiency of it.

CLINIC and the United States Conference of Catholic Bishops are hosting a conference on state and local immigration issues. The conference will be held in Salt Lake City from January 11-13, 2012. We will discuss methods for opposing enforcement initiatives and supporting comprehensive immigration reform. Workshops will include:

strategies for communications and messaging;

coalition building; and

parish organizing and education.

On topics such as:

comprehensive anti-immigrant legislation;

state cooperation with E-Verify;

education, health care and public benefits; and

the impact of these immigration measures on the Church’s mission.

Confirmed speakers include John Sandweg, Counsel to DHS Secretary Napolitano.

Registration costs of $250/single room or $150/double room include hotel accommodations, all meals, conference materials, a reception on January 11 and another evening event on January 12.

CLINIC’s State & Local Initiatives Project is pleased to announce its Alabama Resource Center, located on CLINIC’s website. The site includes an analysis of the new law and the subsequent court rulings blocking parts of it, and talking points for advocacy on this and other state anti-immigrant measures.

The Alabama Resource Center also provides “know your rights” materials and three separate Community Resource Q&As on different parts of the Alabama law. This site will be regularly updated with new materials, so we encourage you to keep coming back to it. Please contact CLINIC’s State and Local Project attorney, Karen Lucas at klucas@cliniclegal.org with any questions.

On October 24, 2011, CLINIC celebrated the 10th Anniversary of the Board of Immigration Appeals (BIA) Pro Bono Project. A reception was generously hosted by the law firm Fried Frank with special guests in attendance, including the Honorable Immigration Judge Paul Schmidt, Acting Director of EOIR Juan Osuna, and Acting Chairman of the BIA David Neal.

The BIA Pro Bono Project secures counsel for respondents who had no representation before the BIA. They either lost their cases before the Immigration Judge or won and are now facing an appeal by the Department of Homeland Security.

In a published study, the Department of Justice found that immigrants who had been provided representation through the Project were up to four times more likely to win a favorable decision before the BIA. CLINIC has succeeded in securing pro bono representation for nearly 800 respondents around the country – individuals who would not have otherwise had representation.

Project Coordinator Lauren Sullivan presented certificates of appreciation to the 10 volunteer screeners who devote countless hours every week screening cases for eligibility in the Project.

Also at the reception, CLINIC presented its 2011 Pro Bono award to the Georgetown University Law Center’s Appellate Litigation Center for its longstanding support of the Project. Along with their students, Professor Steven Goldblatt and his predecessors have represented almost 40 respondents through CLINIC’s Project. Because many of Georgetown’s alumni continue to volunteer after they graduate, the school’s involvement with the Project has had a ripple effect, providing some of our most qualified pro bono counsel.

The most important canon in the medical profession is to do no harm. That adage comes into play in immigration law as well, especially when advising clients whether or not to naturalize. Most of those judgment calls involve clients who have committed an offense that might make them subject to removal. It also arises when the client has spent a considerable amount of time outside the United States while a permanent resident, thus opening up the possibility of abandonment of permanent residency. But after passage of the Child Status Protection Act (CSPA), another pitfall involves the potential adverse effect naturalization could have on the client’s children.

One of the more confounding – and now disappointing – aspects of the CSPA has been whether it offers children protection when their parents naturalize and they automatically convert to a different preference category. After all, a special section codified at INA § 204(k) was added by the CSPA to ensure that children from the Philippines in the F-2B category would not be penalized when their parents naturalize. These children are allowed to opt out of the automatic conversion to the F-1 category and remain in the F-2B, given that the backlogs in the first preference are longer. What about children who are over 21 using their biological age, but still in the F-2A category due to their CSPA age? The first preference is also currently backlogged farther than the F-2A for all nationalities. Shouldn’t they be able to take advantage of this benefit and opt out? The answer, according to a recent BIA decision, is “no.” Matter of Zamora-Molina, 25 I&N Dec. 606 (BIA 2011). The holding sends a clear warning to those who are contemplating naturalizing and whose children might be affected. It also is a sharp rebuke to the USCIS, which recently analyzed this issue and came to the opposite conclusion.

Effect of Petitioner Naturalizing. Let’s start with a review of the possible scenarios when the petitioner naturalizes. These include the following: (1) the child is under 21 using biological age; (2) the child is over 21 using biological and CSPA age at that time; and (3) the child is over 21 using biological age but under 21 using CSPA age. It is the last scenario that has caused the most confusion and has now been addressed by the BIA.

Child Is Under 21 When Petition Is Filed and When Petitioner Naturalizes. The children of LPR parents who filed a Form I-130 on their behalf and who subsequently naturalize will be able to take advantage of the CSPA if these children are unmarried and under 21 on the date the petitioning parent naturalizes. The children automatically convert from the second-preference F-2A category to immediate relative. Under Section 2 of the CSPA, codified at INA § 202(f)(2), they will be able to preserve that status even if they subsequently turn 21 before immigrating. It is the date of the parent’s naturalization that controls. If the child was under 21 at that time, he or she converted to the immediate-relative category and will not age out.

Example: Nora, an LPR, filed an I-130 for her 17-year-old daughter, Sophia. Three years later, before the F-2A category became current, Nora naturalized. Sophia, now age 20, automatically converted to the immediate relative category, since she was under 21 on the date of the petitioner’s naturalization.

It is the child’s biological age – not his or her CSPA age – on the date of naturalization that determines immediate relative status. The BIA’s recent decision also addressed this issue and clarified that one cannot use the CSPA age-adjustment formula of section 3 to claim immediate relative status. Section 2 of the CSPA only looks to biological age on the date of naturalization, not adjusted age. Children who are over 21 on the date of naturalization convert to the first preference category, regardless of how long the I-130 petition had been pending, as will be discussed in the second and third scenarios.

Child is Over 21 When Parent Naturalizes. Under current law, as well as that existing before passage of the CSPA, an LPR parent’s I-130 petition filed on behalf of an unmarried son or daughter over 21 will automatically convert from the second-preference F-2B category to first preference when the LPR parent naturalizes. The same is true if the child was under 21 at the time the I-130 was filed but later turned 21 (after applying CSPA age-adjustment rules) before the LPR naturalized; the category converts from F-2A to F-2B and then to first preference.

The first preference category is now backlogged further than the F-2B category for beneficiaries from the Philippines, and on occasion it has been backlogged further for beneficiaries from Mexico. Therefore, when their parents naturalize, and these sons and daughters over 21 convert from F-2B to first preference, they actually extend the time they must wait for their visa to become current. Section 6 of the CSPA eliminated this penalty by allowing these beneficiaries to elect whether they want to automatically convert to the first preference or opt out and stay in the F-2B category.

The USCIS issued a memo on March 3, 2004, explaining the procedure for opting out. Since only beneficiaries from the Philippines were affected by this provision, they were required to send a letter formally requesting preservation of their F-2B classification to the officer-in-charge in Manila. The officer-in-charge in turn would provide written notification of a decision granting or denying the request and send it to the beneficiary and to DOS’s Visa Issuance unit.

The USCIS subsequently changed the opt-out request procedure. According to a later memo, affected children “should file a request in writing with the District Office having jurisdiction over the beneficiary’s residence.” For those residing in the United States, that will be the local district office. For those residing in the Philippines, it will be the officer-in-charge in Manila. Beneficiaries who are approved will be treated as if their petitioning parents never naturalized. To expedite the request, applicants were told to include the following basic information about the case: case number, date of beneficiary’s birth, name of petitioner, priority date, preference category, and a copy of the I-130 approval notice.

Example. Sandra is the 34-year-old daughter of a Filipino man who just naturalized. He filed an I-130 petition on Sandra’s behalf on April 15, 2001. At that time she was 24 years old. The second-preference F-2B category is now current for her priority date. But when her father naturalized, she converted to the F-1 category, which is currently backlogged three and a half years further than the F-2B category. Fortunately, Sandra can elect to remain in the F-2B category and thus be eligible to adjust or consular process. She must file a formal election and written request to the USCIS office in Manila.

The statutory language in section 6 of the CSPA is mandatory (“any determination with respect to the son or daughter’s eligibility for admission as a family-sponsored immigrant shall be made as if such naturalization had not taken place”), and thus requires the agency to accept the applicant’s written statement opting out of the automatic conversion. Therefore, the son or daughter should not have to file a “request” and have that “approved.” Obviously, one should make this argument in any situation in which the son or daughter is denied the right to opt out.

It would not have mattered if the beneficiary started out in the F-2A category and later converted to the F-2B category by the time the petitioner naturalized. A clarifying memo from the agency determined that the opt-out protection would extend to those beneficiaries as well.

Child Is Over 21 Using Biological Age But Under 21 Using CSPA Age When Petitioner Naturalizes. Section 3 of the CSPA changed the definition of unmarried child under 21 of an LPR for purposes of eligibility for the F-2A classification. The language in INA §203(h) is also mandatory; the determination of age “shall be made using” the child’s adjusted age – not biological age – on the date the visa becomes available or the date the petition is approved, whichever is later. Children are allowed to subtract from their age the entire period the petition was pending before being approved by the USCIS. Therefore, children in the F-2A category who are over 21 using their biological age, but under 21 using their adjusted age on the date the visa becomes available, would not convert to the F-2B category. These children are able to preserve their F-2A status provided they seek LPR status within one year of the visa becoming available.

Under section 3 of the CSPA, therefore, children of LPR petitioners are able to preserve their F-2A classification upon turning 21 if they are still under 21 using their adjusted age on the date the F-2A becomes current. But assume that before the child immigrates or adjusts status in the F-2A category, the petitioner naturalizes. We know that the child does not convert to the immediate relative category, since section 2 of the CSPA controls and that section looks to the biological age of the child on the date of naturalization. The child would appear to convert from the F-2A category to the first-preference. But for nationals of all countries, the first preference is currently backlogged four and a half years further than the F-2A category. For nationals of Mexico and the Philippines, the backlog is considerable (15 years and 12 years, respectively).

While CSPA § 6 allows children in the F-2B category to opt out of conversion to first preference, it has been unclear whether its protection extended to children over 21 but still in the F-2A category. Are they allowed to opt out and remain in the F-2A category? That was one of the questions addressed by the recent BIA case, which held that the statute provided no equivalent opt-out provision for children in the F-2A category. The exact language of section 6 reads as follows:

1) In General- Except as provided in paragraph (2), in the case of a petition under this section initially filed for an alien unmarried son or daughter's classification as a family-sponsored immigrant [in the F-2B category] based on a parent of the son or daughter being an alien lawfully admitted for permanent residence, if such parent subsequently becomes a naturalized citizen of the United States, such petition shall be converted to a petition to classify the unmarried son or daughter as a family-sponsored immigrant [in the first preference category].

(2) Exception- Paragraph (1) does not apply if the son or daughter files with the Attorney General a written statement that he or she elects not to have such conversion occur (or if it has occurred, to have such conversion revoked). Where such an election has been made, any determination with respect to the son or daughter's eligibility for admission as a family-sponsored immigrant shall be made as if such naturalization had not taken place.

The BIA applied standard statutory construction principles. Section 6 of the CSPA refers specifically to beneficiaries in the F-2B category who wish to opt out of conversion and remain in the F-2B category. The BIA also looked at Congressional intent, which it found was attempting to “fix…a troubling anomaly in our immigration laws” when some children were “in effect…penalized for becoming citizens.” But it determined that the anomaly that Congress was trying to fix did not extend to the one presented in this case. It held that: “[n]either section 204(k)(2) of the Act nor the USCIS memorandum allows an alien to elect to remain in the 2A-preference category upon the petitioner’s naturalization where the alien is biologically over the age of 21 but would remain legally a “child” by applying the formula in section 203(h)(1) of the Act.” (emphasis in the original).

As a result of the BIA decision, practitioners must be wary of filing for naturalization if the applicant has children who are approaching or have already turned 21. Those children might be able to retain their F-2A status using CSPA age-adjustment principles. But those children would convert automatically to the first preference upon the parent’s naturalizing if they are over 21 using their biological age and would be unable to reverse the process. For children from Mexico, it will be painful informing them that may have to wait another decade or more before becoming LPRs based on their parent’s naturalizing.

Example. Jose, an LPR from Mexico, filed an I-130 for his daughter, Yolisma. At the time, she was 17 years old. The I-130 was pending for four and a half years before it was approved. Yolisma is now 23, but according to her adjusted age, she is only 19 and is still in the F-2A category. Her visa is now current, but Jose naturalized last month. Yolisma converted to the first preference category and will be unable to opt out of this conversion to stay in the F-2A.

Ironically, less than four months prior to the BIA’s decision, the USCIS analyzed this issue and decided that the CSPA allowed these children to opt out of conversion to the first preference and remain in the F-2A category. This rationale was set forth in the minutes to a national stakeholders’ meeting held on June 29, 2011. While the minutes did not carry the force of law, they did provide guidance to practitioners and adjudicators as to the agency’s official position. It is an embarrassment for the agency now to have to retreat, and an injustice to those who relied on this policy statement to their peril. But after this recent BIA’s decision, it will be a greater embarrassment – and a violation of the first canon – for the practitioner who assists a client in naturalizing only to discover that the children are greatly disadvantaged.

The U.S. Supreme Court will be ruling on at least four major immigration issues in its 2011-2012 term, which began on October 3, 2011. The Court may yet add additional cases and issues to the docket. The Court’s decisions promise to settle some long-fought arguments and significantly affect the development of immigration law. The following is a short summary of the cases and questions the Court already has accepted this term.

Section 212(c) Lives! Must There be a Corresponding Ground of Inadmissibility? The first issue the Court will consider concerns the repealed but still-viable and relevant relief from removal, the §212(c) waiver. At issue is the BIA’s decision, Matter of Blake, 23 I&N Dec. 722 (BIA 2005). In Blake, the BIA held that a person found deportable based on an aggravated felony conviction, under INA § 237, was not eligible for a § 212(c) waiver because there was no corresponding ground of inadmissibility for “aggravated felony” under INA § 212.

Almost all the circuit courts of appeal have considered challenges to Blake, and all but the Second Circuit upheld the BIA’s decision. This is the question the Supreme Court granted certiorari to address:

Whether a lawful permanent resident who was convicted by guilty plea of an offense that renders him deportable and excludable under differently phrased statutory subsections, but who did not depart and reenter the United States between his conviction and the commencement of removal proceedings, is categorically foreclosed from seeking discretionary relief from removal under former Section 212(c) of the INA.

The case is Judulang v. Holder, No. 10-694 [decision in lower court: 06-070986, 2007 U.S. App. LEXIS 22480 (9th Cir. Sept. 17, 2007)]. CLINIC submitted an Amicus Curiae (Friend of the Court) brief to the Supreme Court in this case, focusing on §212(c) relief as ameliorative in nature. The brief, written by Ira Kurzban, argues that the Blake formulation forecloses §212(c)’s critical function as a discretionary provision of mercy and forgiveness for deserving long-time lawful permanent residents.

Briefing in Judulang has been completed and the Supreme Court held oral argument on October 12, 2011. The Court may issue a decision before the end of the year.

Are “Aggravated Felonies” Really Aggravated? The next case scheduled for argument concerns the far-reaching impact of the expanded definition of “aggravated felony.” The question presented is:

Whether the Ninth Circuit erred in holding that petitioners’ convictions of filing, and aiding and abetting in filing, a false statement on a corporate tax return in violation of 26 U.S.C. §§ 7206(1) and (2), were aggravated felonies involving fraud and deceit under 8 U.S.C. § 1101(a)(43)(M)(i), and petitioners were therefore removable.

The Ninth Circuit – in conflict with the Third Circuit, Ki Se Lee v. Ashcroft, 368 F.3d 218 (3d Cir. 2004) – held that this offense is an aggravated felony.

In this case, too, CLINIC signed on to an Amicus Curiae brief written by Ira Kurzban. The brief emphasizes the disastrous emotional, physical, and financial impact on U.S. families of a family member being deported. The brief argues that Congress intended to limit the definition of “aggravated felony” to the very specific crimes identified in the statute, especially as deeming something an aggravated felony brings numerous severe consequences, deeply affecting families.

Can a Parent’s Residence be Imputed to a Child? Also this term, the Court will decide whether a parent’s residence in the U.S. and status as an LPR can be “imputed” to – that is, counted by – an unemancipated minor child who lived with the parent, so the child will qualify for cancellation of removal under INA § 240A(a). That section requires that the cancellation applicant have been lawfully admitted for permanent residence for not less than five years, and that the applicant have resided in the U.S. continuously for seven years, after having been admitted in any status. The Ninth Circuit has held that if the parent meets these requirements but the child does not, the parent’s status and years of residence can be imputed to the child to qualify for cancellation. We will see if the Supreme Court agrees.

Does Fleuti (“Innocent, Casual and Brief” Departures) Survive? Before IIRIRA was enacted in 1996, case law had developed the concept of “innocent, casual and brief” departures from the United States. This concept, otherwise known as the Fleuti doctrine, for the case Rosenberg v. Fleuti, 374 U.S. 449 (1963), allowed immigrants to leave the U.S. and return without triggering grounds of inadmissibility. That is, if the departure was innocent, casual and brief, the person was not considered to be requesting admission on the return.

However, IIRIRA enacted INA § 101(a)(13)(C), which specifies the circumstances under which a returning LPR is not seeking admission to the U.S. These circumstances do not expressly include the “innocent, casual and brief” concept. Moreover, LPRs are considered to be seeking admission if they have committed specified offenses.

The question the Court will consider is:

Whether 8 U.S.C. § 1101(a)(13)(C)(v), which removes a legal permanent resident of his right, under Rosenberg v. Fleuti, 374 U.S. 449 (1963), to make “innocent, casual, and brief” trips abroad without fear that he will be denied reentry, applies retroactively to a guilty plea taken prior to the effective date of the Illegal Immigration Reform and Immigrant Responsibility Act.

How does your program respond to clients seeking to renew their Green Card? Here are two different approaches from affiliates in Texas. Alma Garza-Cruz from Catholic Charities of Southeast Texas in Beaumont responded to the following questions:

How do you currently respond to Green Card renewal applicants? We offer walk-in appointments on Fridays from 9AM – 3PM. Clients do not need to make an appointment in advance. They must bring their paperwork and two money orders: one for Catholic Charities’ fee of $150.00 and one for the USCIS filing fee of $450.00.

Why did your program decide to implement this approach? Before this initiative, clients seeking a Green Card renewal had to complete the typical client intake process, which includes intake and assessment, case selection, and a second appointment to complete the paperwork. Due to scheduling availability and office processing times, clients would then need to wait an average of 2-3 weeks before our office actually filed their I-90.

Many of the clients seeking to renew their Green Card come to us with “urgency.” They realize their card has expired or is expiring in the very near future. We found that the delay resulting from our typical office procedures prompted many to use quick responding notarios or insurance agents advertising preparation of immigration documents, etc. This new initiative helps to meet their need for immediate services, helps the clients avoid using the services of notaries, and helps our program to fulfill a need in the community. While assisting the client in the renewal their Green Card, we take care to provide sound legal advice. We also use their appointment as an opportunity to discuss the naturalization process, the impact of crimes on immigration applications, and the responsibilities that Green Card holders have to the government.

What is impact of this approach on your program? The number of I-90s filed by our office is rising. We have advertised in church bulletins, a Catholic newspaper, and at local Hispanic markets. We also mailed information about this service to over 600 employers in area. We issued a press release, and secured the services of a volunteer attorney who comes on Fridays to help us with the walk-in appointments. Through these advertising efforts, we have reached a greater market and are teaching the community the dangers of using unauthorized legal practitioners.

What is the community response to this approach? The community is glad that we have started this initiative. Clients like walking in without an appointment and being seen right away. They also appreciate having the opportunity to avoid using the services of notarios.

Linda Brandmiller from Catholic Charities of San Antonioresponded to the same questions as follows:

How do you currently respond to Green Card renewal applicants? Generally, our program does not help clients to renew their Green Cards. If eligible, we encourage the client to file for naturalization instead. We ask two questions prior to accepting money for a consultation. The first is, “When does the card expire?” This gives us an understanding of the time line and relevant options. The second is, “Why are you renewing your LPR card, and why have you not applied for citizenship?”

We provide a brief overview of why naturalization is an important step to take and how it can protect the client and their family. We explain that we offer two Saturday workshops per year (in the Spring and Fall) at a reduced fee of $50. Usually, the client will decide to proceed through the consultation process for naturalization screening (the $30 consultation fee is credited to the workshop fee).

If the client is not interested in naturalizing, we provide a referral to another local BIA program that charges a reduced fee to renew the card. We encourage the client to return to us when they are ready to consider naturalization.

Why did your program decide to implement this approach? We have a fundamental conflict with perpetuating an “underclass.” We believe that people who maintain their LPR status are less likely to fully acculturate, will always be victims of changing laws and interpretations, do not have a true “voice” in the country since they cannot vote and are often written off as only “residents,” don’t qualify for full benefits, are always at risk of deportation, spend money unnecessarily on renewing a card that never provides permanency, generally have a longer wait time for petitioning relatives, and cannot petition for the full range of family members. Also, we have discovered recently that many LPR renewals may likely trigger a Notice to Appear due to past criminal history, fraud in obtaining the card, etc. Clients seek our services, “just to renew the green card” because they think that this application is safer to file and will escape detection, but we feel that this may not be the case.

What is the impact of this approach on your program? Some people walk away and state they won’t consider naturalization. After understanding the full impact of remaining an LPR vs. transitioning to a USC, many clients choose to pursue naturalization. In the fairly rare circumstances where someone does not qualify to naturalize, we renew their LPR card with the explanation of what they need to do to become a citizen at the earliest possible time. Increased revenue is another impact we’ve seen because of this approach. We have more than doubled the participation in our most recent naturalization workshop and have seen increased requests for naturalization services in our office.

What is the community response to this approach? As of yet, we have not heard of any significant community response one way or another. As staunch advocates, even though our decision to not routinely renew LPR cards may be the road less travelled, we believe that sometimes you have to do something that may be a little more difficult but in the long-run has a better outcome for our clients.

CLINIC welcomes a new member agency, Catholic Charities of Shreveport in Louisiana. The Diocese of Shreveport is already a member. Yet, Catholic Charities of Shreveport, apart from the diocese, is a newly incorporated 501 (c) 3 agency. Jean Dresley, the Executive Director, advised that Catholic Charities will start a legal immigration program with new leadership and direct staff to conduct administrative-based immigration representation. The Diocese of Shreveport will retain its BIA partially accredited representative to conduct immigration representation for its church-based needs.

CLINIC has accepted and welcomes a new subscriber, Lutheran Community Services Northwest, with offices in Portland and McMinnville, Oregon, and Seattle and Vancouver, Washington. All but the McMinnville office are recognized with at least one accredited representative on staff.

CLINIC and the United States Conference of Catholic Bishops will be hosting a conference on state and local immigration issues. The conference will be held in Salt Lake City, Utah from January 11 through13, 2012. We will discuss methods for opposing enforcement initiatives and supporting comprehensive immigration reform. Workshops will include strategies for communications and messaging, coalition building, parish organizing and education, and the impact of these immigration measures on the Church’s mission. Registration costs of $250/single room or $150/double room include hotel accommodations, all meals, conference materials, a reception on January 11 and another evening event on January 12.

Last month, DHS’s Homeland Security Advisory Council (HSAC) released a report outlining its findings and recommendations regarding the Secure Communities Program. CLINIC shared its concerns that the recommendations do not go far enough to correct the real problems with the program. On October 18, CLINIC wrote a letter to the HSAC welcoming several of the recommendations proposed by the Task Force. CLINIC reiterated, however, the concerns expressed in our August letter to the Task Force and called upon HSAC to consider broader reforms. CLINIC continues its active advocacy role with respect to Secure Communities by meeting with both the Government Accountability Office (GAO) and the DHS Office of Inspector General (OIG) as these officers carry out their independent reviews of the Secure Communities program.

CLINIC is interested in hearing about your recent experiences with U Visa certification practices in your area, to inform our advocacy with DHS’s Office of Civil Rights and Civil Liberties (CRCL) regarding that office’s oversight of certification practices in the field. Have your local ICE/CBP agents, police departments and state attorneys general been certifying meritorious U Visa applications, or have they refused? Contact CLINIC Advocacy Attorney Karen Siciliano Lucas at klucas@cliniclegal.org.

On August 18th, the Obama administration announced that the Department of Homeland Security (DHS) and the Department of Justice (DOJ) would be participating in a joint working group to ensure that the agencies direct their resources to the high-priority cases and “clear out” cases that do not involve immigrants who have been convicted of crimes or pose a security risk, i.e. low priority cases. As part of this inter-agency review, the working group will analyze whether the 300,000 cases currently pending before the immigration courts, Board of Immigration Appeals, and federal circuit courts of appeals should be administratively closed. The August 18th announcement was intended to implement the two memos issued by ICE Director John Morton on June 17, 2011 about prosecutorial discretion that clarify DHS’ enforcement priorities: national security, public safety, border security and repeat immigration law violators.

What is prosecutorial discretion? Prosecutorial discretion is the authority that every law enforcement agency has to decide whetherto exercise its enforcement powers against a person, and evenif there is a decision to exercise enforcement powers – to what degree and how – in what form to exercise enforcement powers. In the immigration context, the decision of who to stop, who to arrest, who to detain, whether to initiate proceedings, and whether to execute a removal order are all examples of the exercise of prosecutorial discretion. The types of prosecutorial discretion at ICE’s disposal include the decision to issue or cancel a detainer; issue, reissue, serve, file or cancel a Notice to Appeal; grant deferred action, parole or a stay of removal; settling or dismissing a proceeding, and pursuing an appeal. Prosecutorial discretion may involve individual immigration decisions or larger policy determinations. For example, the decision not to engage in immigration enforcement near schools or churches is a prosecutorial discretion decision within a larger policy framework.

What positive factors will be considered in a prosecutorial discretion decision? The factors that may be weighed in the exercise of prosecutorial discretion are the types of positive and hardship factors that we often consider in waiver cases. The positive factors have been identified by DHS as meriting particular care and concern:

the length of presence in the US

the history, ties and contributions to the community

ties to family in the US and their citizenship or immigration status

ties to the home country

conditions in that country

health and age factors

presence of family members requiring care, military veterans, victims of domestic abuse or trafficking or other serious crimes, pregnant and nursing women.

What is the current practice around the country? Although the August 18th announcement indicated that there would be guidance on prosecutorial discretion, two months later, no guidance has yet been issued. Practitioners report that there is no uniform method of handling cases that request prosecutorial discretion. The American Immigration Lawyers Association and the American Immigration Council recently released an interim report on the implementation of prosecutorial discretion nationwide. According to this interim report, there has been a mixed response to practitioner requests for prosecutorial discretion. Some offices have granted deferred actions and stays of removal. Some DHS district counsel (OCC) have opposed motions to administratively close proceedings while others have joined in motions to administratively close. Many immigration judges and district counsel have indicated an unwillingness to provide prosecutorial discretion until there is guidance and written memos from the joint DHS and DOJ working group.

What should you do? There are significant questions left unanswered in the implementation of the announcement and Morton memos. However, it may be important to do an inventory of your cases to determine if any fall within the areas specified in the announcement and memos. This is particularly true for cases involving individuals currently in removal proceedings for whom the cancellation or reissuance of a Notice to Appear would permit the non-citizen to qualify for relief such as cancellation of removal or other forms of relief. For example, if your client fits the criteria outlined for prosecutorial discretion, is in removal proceedings, and has eight years of physical presence in the US, you may seek prosecutorial discretion with the thought of cancelling the Notice to Appear now but later requesting reissuance if your client has a good cancellation of removal case.

In addition, it’s important to review your cases to look for instances involving individuals who were the victim of a crime, a witness to a crime, or a plaintiff in a lawsuit involving civil liberties or civil rights. We are accustomed to looking for crime victims for purposes of U visa cases, but we can also expand our sights to those involved in protecting their civil rights via union organizing or complaining about employment discrimination or housing conditions. Those involved in unfair labor practice actions – state or federal labor department cases, employment discrimination actions, etc. – should be protected under the terms of the Morton memos.

Prosecutorial discretion should also be exercised to allow clients previously apprehended by ICE to be released from custody or granted deferred action, parole or a stay of removal. Other clients in removal proceedings may be able to benefit from the exercise of prosecutorial discretion and be permitted to settle a case or appeal, dismiss a proceeding, or join in a motion to reopen removal proceedings.

How do you go about requesting prosecutorial discretion? The announcement and memos do not outline any procedure for requesting prosecutorial discretion. However, since prosecutorial discretion may be requested at any stage in the proceedings – at the time of arrest, detention, or even after an order of removal – where the request is filed will depend on the stage of the case. You may make the request of the district counsel if your client is in removal proceedings. In other circumstances, it may be appropriate to make your request of others within ICE.

Your client may also request prosecutorial discretion from USCIS to prevent the initiation of proceedings or request other consideration. Despite the fact that the current memo is from ICE, previous memos have included USCIS, and it is also appropriate to request its exercise prosecutorial discretion.

CLINIC’s Advocacy staff is interested in hearing from you about your experiences with requesting prosecutorial discretion in your cases. Please contact Allison Posner at aposner@cliniclegal.org to relate your experiences sharing the merits of your clients’ cases and how the government responded to your requests.

The most ambiguous and hotly contested provision in the Child Status Protection Act (CSPA) concerns the status of derivative beneficiaries after they age out. The relevant provision, codified in INA § 203(h)(3), reads as follows:

RETENTION OF PRIORITY DATE—If the age of an alien is determined under [INA §203(h)(1)] to be 21 years of age or older for the purposes of [INA §§203(a)(2)(A) and (d)], the alien’s petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.

In the preceding sections, 203(h)(1) sets forth the CSPA age-reducing formula for determining whether an alien has aged out. Section 203(h)(2) defines the petitions covered by 203(h)(1) and includes F-2A beneficiaries and derivative beneficiaries in all family- and employment-based petitions, as well as diversity immigrants.

The INS/USCIS, Department of State, and the Executive Office for Immigration Review have been battling practitioners on the proper interpretation of section 203(h)(3) almost from the date the CSPA was implemented. And a lot rides on the outcome. Thousands of children who are now over 21 using their CSPA age, but who were once derivative beneficiaries in one of the family-based categories, either are or are not eligible to immigrate immediately upon the principal beneficiary’s becoming an LPR and filing a new petition in their behalf.

Although relatively straightforward on its face, the language in 203(h)(3) has managed to confound the Board of Immigration Appeals and now the federal circuit courts. Upon further analysis, it reads like a riddle subject to multiple interpretations – a legal Rubik’s Cube of possible meanings – each one containing some flawed reasoning. Does the word “petition” relate to all petitions covered in 203(h)(2) or does it apply only those in the F-2A category? If it applies to all derivatives, what category do they convert to when they age out and when does this conversion take place? If it applies to all derivatives, does this really mean that they retain the priority date filed on behalf of their parent years earlier, and thus will be current upon the parent’s filing a new petition in their behalf? Does it matter what Congress intended when it passed this provision, or are the words plain and unambiguous on their face? If this provision applies only to derivatives in the F-2A category, does this “automatic” conversion necessitate the filing of a second I-130 petition on the child’s behalf? These are the questions the appellate agency and federal courts grappled with as they came to differing results using varying approaches.

When an LPR parent petitions for an unmarried child under 21 and that child ages out of the second-preference F-2A category, after taking into account the CSPA’s age-out protections, the child automatically converts to the F-2B category. If that child was not a direct beneficiary but a derivative in the F-2A category, and then ages out, the child loses derivative status. The USCIS’s current policy is that the LPR parent must file a separate I-130 on the child’s behalf. The child converts from the F-2A category to the F-2B category upon the LPR parent’s filing this second petition, and the child is able to retain the original priority date that was obtained for the first I-130. 8 CFR § 204.2(a)(4).

Example. Dinah, an LPR, filed an I-130 petition for her husband, Carlos, on April 30, 2001. She named her daughter, Maria, on the I-130 petition. When the F-2A petition became current, Carlos adjusted status under INA §245(i). Maria had turned 24 and had aged out of derivative status, even after applying CSPA principles. Dinah will need to file a new I-130 on Maria’s behalf, since Maria is no longer a derivative. Maria will convert to the F-2B category and will be able to retain the priority date from the first I-130 petition filed on behalf of Carlos.

According to the USCIS, that same principle does not apply to derivative children who age out, after applying the CSPA, in the first-, third-, or fourth-preference categories. Those children will have to wait until their parent, the principal beneficiary, becomes an LPR and files a new I-130 petition on their behalf. This would be a second-preference F-2B category petition. But the child does not get to retain the original priority date.

During a ten-week period ending on September 8, 2011, three circuit courts weighed in. The first found that the language in the statutory provision was unambiguous and thus the court was free to ignore agency interpretation. But it held that the automatic conversion and retention of priority date principle applied only to children in the F-2A category and not to all other beneficiaries. Li v. Renaud, 2011 U.S. App. LEXIS 13357 (2nd Cir. N.Y. June 30, 2011). The second court found the language ambiguous and deferred to agency interpretation, thus resulting in a similar outcome albeit from a different direction. Cuellar de Osorio v. Mayorkas, 2011 U.S. App. LEXIS 18289 (9th Cir. Cal. Sept. 2, 2011). But the third court, like the first one, found the language to be unambiguous, only it came to the opposite conclusion – the provision applied to all derivatives, not just those in the F-2A category. Khalid v. Holder, 2011 U.S. App. LEXIS 18622 (5th Cir. Sept. 8, 2011). It is presumed that the government and/or the petitioners will be seeking further review of these decisions, through petitions for rehearing en banc, stays, or a writ of certiorari to the U.S. Supreme Court. This article will try to shed some light on these different holdings and let practitioners know the current interpretation in their jurisdiction.

This CSPA provision was first interpreted by the INS shortly after the law was passed; the agency’s unofficial position was that it narrowly applied only to derivative beneficiaries in the F-2A category. But this interpretation was put into question by an unpublished decision from the BIA, which held that derivative children in other family-based categories – including the third and fourth preference – must also covert to the F-2B category upon the principal beneficiary’s immigrating and filing a new petition on their behalf. And the aged-out children then retain the original priority date for the petition filed on behalf of the principal beneficiary. Matter of Garcia, 2006 WL 2183654 (BIA July 16, 2006). The BIA reasoned that the Aappropriate category@ must be viewed from the perspective of the principal beneficiary, i.e. the aged-out derivative becomes the unmarried child over 21 of an LPR.

The USCIS did not adopt this case holding or interpretation, however. In fact, at a USCIS National Stakeholder meeting on May 27, 2008, the agency finally stated its official position that the conversion and retention language of INA § 203(h)(3) applied only to derivatives who age out of the F-2A category. At about that time the Attorney General certified a case similar to the facts in Garcia to the BIA for a more definitive ruling. One year later, the BIA, in a published decision, adopted the government’s position and held that the statute applies only to derivative children in the F-2A category. Matter of Wang, 25 I&N Dec. 28 (BIA 2009). It reviewed the legislative history and found no Congressional language supporting such a finding. It also examined the term Aconversion@ and concluded that it should not be expanded to cover derivatives in the F-1, F-3, and F-4 categories who age out, since there is no Aappropriate category@ for these persons. It chose to limit the term Aretention of priority date@ to situations where the same petitioner files a new petition for the same beneficiary.

In both the BIA and the later circuit court decisions, the underlying facts were essentially the same. A U.S. citizen had petitioned either for a married sibling in the fourth preference category or a married son/daughter in the third preference category. The principal beneficiary had a child who later aged out of derivative status. After the principal beneficiary became an LPR, he or she filed a separate petition for the child in the F-2B category and requested retention of the original priority date. All three circuit courts applied a well-established, two-part analysis set forth in a seminal Supreme Court decision, Chevron U.S.A, Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). The first part under the Chevron test is to determine whether the statutory language is clear on its face after applying traditional rules of statutory construction. If Congress has spoken directly to the precise question at issue, then that is the end of the analysis, regardless of the agency’s interpretation. If, on the other hand, the language or Congressional intent is ambiguous, a reviewing court proceeds to the second part of the test, which is to defer to the agency’s interpretation, assuming it is reasonable.

The Second Circuit, which covers the states of Connecticut, New York, and Vermont, held that the statutory language was plain on its face. It bought the USCIS’s argument that “conversion” occurs only when the category changes, not the petitioner. There is no ‘appropriate category” for the derivatives to automatically convert to, since that requires the filing of a second petition by a different petitioner. Therefore, according to the court, Congress must have meant to limit 204(h)(3) to the aged-out F-2A derivatives. It decided that section 203(h)(3) “does not entitle an alien to retain the priority date of an aged-out family preference petition if the aged-out family preference cannot be ‘converted to [an] appropriate category.’” The court did not reach the issue of whether the BIA’s decision in Matter of Wang was reasonable since it limited its analysis to the statutory language.

In contrast, two months later the Ninth Circuit Court of Appeals examined the same statutory language and found them to be ambiguous. The Ninth Circuit encompasses the western states of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington. The court found that if it interpreted the language literally, i.e., that “petition” applies both to F-2A and all other preference categories, it would lead to “unreasonable or impracticable results.” The court had difficulty with the term “automatically,” which modifies the conversion to the appropriate category after the derivative aged out. Since any conversion to the F-2B category for beneficiaries in the third or fourth preference requires the principal beneficiary’s becoming an LPR and then filing a subsequent petition, it could not be described as automatic. If there is no automatic conversion for this group of derivatives, then there can be no retention of priority date, since the two actions do not operate independently. Finding the terms to be ambiguous, the court turned to the legislative intent, which it found to be inconclusive. The court then looked at how the agency and the BIA had interpreted the provision and found the holding in Matter of Wang to be reasonable.

The Ninth Circuit also distinguished the long-standing regulation, 8 CFR § 204.2(a)(4), which allowed for retention of the priority date for derivatives in the F-2A category when they aged out and the same petitioner filed a new I-130, from the new INA § 203(h)(3), which calls for automatic conversion and retention. Practitioners had argued that limiting this CSPA provision to beneficiaries in the F-2A category would affect no significant change and make the statutory language unnecessary. But the court explained that the CSPA provision made this conversion from the F-2A to the F-2B category automatic, implying that no second I-130 petition need be filed. In another part of the decision, the court stated that section 203(h)(3) allows the F-2A beneficiary “to move to a different category as an adult without having to file a new petition and get a new priority date.” This is precisely the argument advanced by counsel representing the government in this case when they distinguished the pre-existing regulation from the statutory provision: these aged-out derivatives in the F-2A category do not require a new petition to be filed in their behalf in order to convert to the F-2B category and thus they can now save on filing fees. The Fifth Circuit pointed out that the Second Circuit implied the same interpretation (“the only difference between the regulation and the Li court’s reading of subsection (h)(3) is that the statute would relieve the [LPR petitioner] of the burden of filing a new petition, since the conversion would now be automatic.”). While the USCIS does not currently agree with this interpretation of 203(h)(3), and the National Benefits Center will still require the filing of a second petition, those residing in the states covered by the Ninth and Second Circuit decisions should consider making this argument.

Had the Fifth Circuit – which is considered the most conservative of the three – gone along with the Second and Ninth Circuit, this controversy would probably have been put to rest. But the Fifth Circuit took a more detailed examination of the statutory language and looked at all three parts of section 203(h) as a whole. Like the Ninth Circuit, it concluded that the word “petition” in 203(h)(3) referred to petitions filed on behalf of beneficiaries in the F-2A as well as all other categories. It was given the same meaning as the word “petition” in 203(h)(1), which “applies to a child of an LPR, or a child who is a derivative beneficiary of any family, employment, or diversity visa petition.” Unlike the Ninth Circuit, or the BIA in Matter of Wang, the Fifth Circuit found no ambiguity. “In light of the interrelated nature of the of [(h)(1), (h)(2), and (h)(3)], reading the subsection as a whole confirms that Congress intended (h)(3) to apply to any alien who “aged out” under the formula in (h)(1) with respect to the universe of petitions described in (h)(2).”

The Fifth Circuit, which covers the states of Louisiana, Mississippi, and Texas, refused to read in some congressional intent or limit (h)(3) to derivatives in the F-2A category since the language of the statute was plain on its face. It agreed that this interpretation caused a break with past practices regarding the terms conversion and retention, but the clarity of the statutory words compelled such an expansion (“it seems unlikely that Congress would exclude an entire class of derivative beneficiaries from subsection (h)(3)’s benefits by silent implication based on the unwritten assumption that the petitioner must remain the same.”). And it answered the question of what category the aged-out derivative in the third or fourth preference automatically converted to by going back to the BIA’s reasoning in Matter of Garcia. The automatic conversion does not happen when the derivative turns 21; it happens when the visa becomes available, which is when section (h)(1)’s age-adjusting formula is applied. At that point, assuming it has been determined that the derivative has aged out, the principal beneficiary is current and the appropriate category is looked at with respect to the principal beneficiary. The aged-out derivative then becomes the unmarried child over 21 of an LPR. The Fifth Circuit was thus able to weave together all the language used in 203(h) without having to read out various portions, carve out exceptions, rely on past agency practices, or imply congressional intent when none was specifically stated.

Conclusion. Borrowing from that time-worn phrase, section 203(h)(3) might just be a riddle wrapped in a mystery inside an enigma. Resolution of this issue will have to await further federal appellate court decisions, probably through en banc panels in the circuits that have ruled so far. If a split in the circuits continues, this may be resolved only at the Supreme Court level. In the meantime, unless a stay is granted, aged-out derivatives residing in the Fifth Circuit should be eligible for relief comparable to that afforded the plaintiff in the Khalid decision. The Fifth Circuit decision is attractive and compelling in its logic, simplicity, and refusal to read in congressional intent when the statutory language is plain and clear. With a Supreme Court packed with strict constructionists, it is possible that such an approach may ultimately succeed.

On Monday, June 27, 2011, federal Judge Thomas W. Thrash, Jr. temporarily blocked the implementation of two sections of Georgia’s controversial immigration law, House Bill 87. He did so by issuing a preliminary injunction, which prevents the state of Georgia from enforcing these sections of the law until a final determination can be made by a federal court as to their constitutionality.

The first part of HB 87 blocked by Judge Thrash is Section 8, which authorizes the police to investigate the immigration status of a criminal suspect and detain him if he has no lawful status in the United States.

The second blocked provision is Section 7, which makes it a crime to transport or harbor an undocumented immigrant or induce an undocumented immigrant to come to Georgia.

Judge Thrash held that Sections 7 and 8 are likely to be found unconstitutional because they violate the Supremacy Clause in Article VI of the Constitution, which states that federal law is the “supreme Law of the Land” and that states are bound to uphold it. Generally, states are prevented (or “preempted”) from legislating in a way that undermines Congressional efforts in the same area.

Section 8: Why Can’t State Police Investigate and Detain Individuals Who Have Violated Federal Immigration Laws? Section 8 is a problem, Judge Thrash reasoned, because it gives so much discretion to local police officers. Under Section 8, police officers may choose whether to investigate a criminal suspect’s immigration status, and may also choose whether to detain or release any given suspect who is unlawfully present. Thus, Section 8 substitutes the discretion of the local police for that of the federal government in setting immigration enforcement priorities. It “poses a serious risk that HB 87 will result in inconsistent civil immigration policies not only between federal and state governments, but among law enforcement jurisdictions within Georgia.”

This is why, Judge Thrash explained, the federal Immigration and Nationality Act (INA) does not permit states to enforce immigration law except in certain very limited circumstances, when the Attorney General has specifically authorized and continues to monitor the enforcement (for example, in the case of what are known as “287(g) agreements”).

Why Doesn’t Section 8 Violate the Fourth Amendment? In addition to arguing that Section 8 violates the Supremacy Clause of the Constitution, with which Judge Thrash agreed, the plaintiffs in this case also argued that Section 8 violated the Fourth Amendment. The Fourth Amendment prevents unreasonable arrests and detention by law enforcement. Detention that is not based on an underlying crime is unreasonable. Simply residing in the United States without documents (by overstaying one’s visa, for example) is not a crime, Judge Thrash correctly noted that it is a civil violation. The Fourth Amendment would not permit police to hold a person solely on that basis.

But investigating someone’s immigration status pursuant to Section 8 would not necessarily prolong his or her detention, Judge Thrash reasoned. Section 8 allows officers to investigate someone’s immigration status when they have cause to believe that the person has committed or is committing another crime. If, for example, if an officer arrests a man for selling drugs, taking the time to check his immigration status while he is detained would not extend his detention beyond that which the law already considers appropriate for that offense. But if an officer detains a man solely to check his immigration status, or lengthens his detention only to perform such a check, that officer likely would be violating the Fourth Amendment.

Section 8 would not always, in every circumstance, create a Fourth Amendment problem. Therefore, Judge Thrash could not block Section 8 wholesale on this ground. If the judge had been presented with particular examples of officers acting in an unconstitutional manner, he might then have ruled that Section 8 violated the Fourth Amendment as applied to those individuals. But that was not the nature of the case before him. The point of this case was to try to block Section 8 before any local officer had an opportunity to enforce it.

Section 7: Can States Criminalize the Transportation and Harboring of Individuals Who Have No Legal Status in the U.S., or Is This Also Blocked by Federal Law? Section 7 defines the term “harboring” much more broadly than federal immigration law does, Judge Thrash noticed. Section 7 therefore creates new and different immigration crimes at the state level.

Thus, both Section 7 and Section 8 try to create a separate state system for identifying and punishing immigration violators, giving state officers substantial discretion to establish their own immigration enforcement priorities separate and apart from those identified by the federal government. Judge Thrash therefore would not let these sections go into effect.

Judge Thrash easily distinguished the United States Supreme Court’s recent decision to permit Arizona to mandate the federal E-Verify system in that state and to punish businesses that hire unauthorized workers by revoking their business licenses. Unlike Section 7, Arizona’s employer sanctions statute fits neatly into an explicit Congressional carve-out for state efforts. Furthermore, while Arizona’s employer sanctions statute falls within a field traditionally regulated by the states (the employer-employee relationship), Section 7, which Judge Thrash described as regulating the movement of immigrants, does not.

Judge Thrash used some very strong language in opposition to the policies underlying the entire bill. “The widespread belief that the federal government is doing nothing about illegal immigration is a myth,” he said. The assertion that the federal government has been “passive” in enforcing immigration law “has no basis in fact.” He further described HB 87 as an attempted “end-run” around the comprehensive federal immigration enforcement scheme that was designed to allow the Executive Branch to set enforcement priorities.

But he saved his most vigorous condemnation for Section 7: “The Defendants’ claim that the new criminal statutes [in Section 7] will prevent exploitation of illegal aliens is gross hypocrisy. The apparent legislative intent is to create such a climate of hostility, fear, mistrust and insecurity that all illegal aliens will leave Georgia.”

Is Anything Left of HB 87 After This Decision? Yes. Among other things, HB 87 also does the following: enacts a mandatory E-Verify program (Sections 3 and 12); creates a new crime of “aggravated identity fraud” (Sections 4-6); authorizes federal/state law enforcement partnerships (Sections 9-11); mandates that officers use “a reasonable effort” to verify whether any foreign nationals confined in county or municipal jails had been “lawfully admitted to the United States and if lawfully admitted, that such lawful status has not expired” (Section 13); mandates that any undocumented immigrant in custody be “detained, arrested, and transported as authorized by state and federal law” (Section 13); requires certain documentary proof of “lawful presence” for the receipt of public benefits (Section 17); and creates the “Immigration Enforcement Review Board” (Section 20). None of these sections were addressed in this case.

What’s next for HB 87? The Attorney General of Georgia, Sam Olens, has appealed Judge Thrash’s ruling to the 11th Circuit U.S. Court of Appeals. That may take a while. In the meantime, Sections 7 and 8 remain blocked. CLINIC will follow all developments with respect to HB 87 and will continue to keep our affiliates informed.

Part 2: Federal Judge Temporarily Blocks Part of Indiana’s SEA 590

Introduction. On June 24, 2011, federal Judge Sarah Baker temporarily blocked the implementation of two sections of Indiana’s controversial immigration law Senate Enrolled Act 590 (SEA 590). She did so by issuing a preliminary injunction, which prevents the state of Indiana from enforcing these sections of the law until a final determination can be made by a federal court as to their constitutionality. SEA 590 was scheduled to go into effect July 1, 2011.

The first part of the law that Judge Baker blocked is Section 19, or the portion of SEA 590 that authorizes police officers to make warrantless arrests of anyone who: “(a) has been ordered to leave the U.S. by a judge; (b) has been issued a federal immigration detainer or notice of action; or (c) has been indicted for or convicted of one or more aggravated felonies.

The second provision is Section 18, which made it an offense for anyone other than a police officer to knowingly or intentionally accept consular identification as a valid form of identification. This article will discuss only Section 19.

Warrantless Arrests in Section 19: What Are Orders Of Removal, Detainers, And Notices Of Action? “Removal” is the current legal term for deportation. A removal order is issued by an immigration judge if, after a hearing, the government has sufficiently proven that the person is a noncitizen and that he or she is removeable based on one or more of the deportation grounds listed in the INA.

A detainer is a request – not a mandate or a criminal arrest warrant – made by federal immigration authorities to the local jail that is already holding someone on a non-immigration related criminal violation. The detainer asks that the jail continue to hold that person for no more than 48 hours beyond the time permitted by state law for the underlying offense. This 48-hour window allows ICE to take custody of the individual if it so chooses.

A notice of action is merely a federal form (Form I-797) used to communicate with a person whose immigration petition is pending. The subject matter of a notice of action can be as mundane as merely acknowledging receipt of the petition.

Is It a Crime To Be the Subject of a Removal Order, Detainer, or Notice of Action? No. Simply being the recipient of a removal order, a notice of action, or a detainer is not a crime under either federal or Indiana state law.

Though it may seem incredible given the severity of the consequences of deportation for the individual and for his or her family, removal is a civil (or administrative) remedy, not a criminal punishment, and removal proceedings take place in an administrative immigration court system, not the criminal court system.

Is It a Crime To Have Been Indicted or Convicted of an Aggravated Felony? No. It is not a crime under either federal or Indiana state law to have been indicted or convicted of an aggravated felony. Someone who has been indicted for a felony should not be punished until a trial is held and he or she is found guilty. After the person has served the sentence, a person who has been convicted of a felony is not then punished again simply for being a convicted felon.

Furthermore, whether any particular criminal conviction gives rise to immigration penalties is not a straightforward calculation, and local police cannot be expected to make the complex determination that a particular criminal is removable from the United States absent a federally-issued removal order.

Aren’t Federal Immigration Officers Supposed To Arrest Anyone Who Has Received A Removal Order? Not necessarily. Under federal law, a person may be arrested and detained by ICE once removal proceedings have begun and before a final decision has been made. This is not technically a criminal matter either, despite the similarity of the language (“arrest” and “detention”) used in criminal law.

But such an individual need not be detained. In fact, a person whose removal order is pending or already has been issued by an immigration court may be released on bond or conditional parole, and may even be legally authorized to work. A removal order is not the end of the line for an individual. He may still appeal that order – during which time he may (or may not) be administratively detained by the federal government – until he receives a final decision (at which time the removal order “becomes final”). Even at this late stage, in some circumstances, he may be permitted to reopen the removal proceedings.

The Constitution requires that, once a removal order becomes final, a person may only be detained by the federal government for 90 days. If the federal government cannot deport an individual by the end of the 90 days, he must be released from detention subject to supervision.

Why Is Section 19 Unconstitutional? Judge Baker declared that Section 19 is likely unconstitutional on two grounds. First, it violates both the Fourth Amendment and constitutional due process requirements. Second, it violates the Supremacy Clause in Article VI of the Constitution.

Fourth Amendment and Due Process. “Section 19 authorizes state and local law enforcement officers to effect warrantless arrests for matters that are not crimes,” wrote Judge Baker. That is the crux of the Fourth Amendment problem. The Fourth Amendment requires that arrests be reasonable, and arrests are only reasonable if the officer has probable cause to believe that some criminal offense has been or is being committed.

Judge Baker also objected to the “deafening silence” in Section 19 about what happens to a person after his or her arrest. That is, Section 19 did not spell out any due process protections for the person arrested as required by the Fifth and Fourteenth Amendments. Will the person be eligible for bail? What if ICE does not want to take custody of the person? Will he or she be detained indefinitely? These are questions that Section 19 leaves unanswered.

The Supremacy Clause and Preemption. The Supremacy Clause in Article VI of the Constitution declares that federal law is the “supreme Law of the Land” and that states are bound to uphold it. Generally, states are preempted from legislating in a way that undermines Congressional efforts in the same area.

Federal regulatory schemes (like our nation’s vast system of immigration laws) block state action when “compliance with both federal and state regulations is a physical impossibility or when state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”

Judge Baker held that states generally have no authority to enforce federal immigration law in the absence of an appropriate partnership with the federal government (such as a “287(g) agreement”). Indiana currently has no such agreement with the federal government, and Section 19 authorizes arrests in circumstances that are much broader than those permitted to states working in partnership with the federal government.

The problem with Section 19 is that it interferes with federal discretion to set enforcement priorities and select enforcement methods. Relying on the U.S. Ninth Circuit Court of Appeals’ recent decision to block many sections of Arizona’s infamous SB 1070, Judge Baker ultimately held that it is “reasonable to predict” that many arrests made pursuant to Section 19 – that is, state-level arrests of people who may not actually be subject to federal detention – “will be in direct contravention of ‘the carefully calibrated scheme of immigration enforcement that Congress has adopted.’”

Is Anything Left of SEA 590 after this Decision? Yes. Among other things, SEA 590 also: prevents the establishment of any “sanctuary” locality or agency; prohibits officers from checking the immigration status of victims of and witnesses to crime (Section 3); creates certain tax consequences for hiring unauthorized workers (Sections 4-7); verifies the immigration status of any “committed criminal offender” (Section 8); requires that the immigration status anyone over 18 who applies for federal or state public benefits be verified, with certain exceptions (Sections 13 and 14); mandates that businesses use the federal E-Verify program to determine work authorization (Section 16); permits police officers to submit a complaint to ICE if they have probable cause to believe that an individual has engaged in day labor in violation of federal immigration law (Section 17); places restrictions on bail for unlawfully present individuals (Section 22); and punishes transporting, moving, harboring or concealing an unlawfully present immigrant for the purpose of commercial advantage or private financial gain (Section 24).

What’s Next for SEA 590? The Attorney General of Indiana, Greg Zoeller, has announced that he will not appeal Judge Baker’s preliminary injunction. That means that Sections 18 and 19 will not be able to go into effect for the time being. The next step is for the federal court to make a final determination of the sections’ constitutionality. That may take a while.

It is always possible that civil rights groups will mount yet another court challenge to SEA 590, targeting parts of the law that have not yet been addressed and remain in effect. CLINIC will follow all developments with respect to SEA 590 and will continue to keep our affiliates informed.

For more information about these cases and about all state and local immigration initiatives, please contact Karen Siciliano Lucas at klucas@cliniclegal.org.

On August 12, 2011, CLINIC was happy to welcome five staff from the National Benefits Center (NBC) to speak to participants at a training on family-based immigration issues in Kansas City, Missouri. The NBC officers attending the training were Ya-Mei Chen, Community Relations Officer; Cynthia Einhellig, Supervisor, Congressional Liaison Team; Michael James, Supervisor, Hague Adoption Team; Norma Limon, Assistant Center Director, Customer Relations Division; and Teresa Schaedel, Supervisor, Program and Management Analyst. After a brief presentation about the work of the NBC, the officers responded to a list of questions submitted in advance of the training as well as to questions from the participants. A summary of practice tips and updates provided by the NBC officials follows. Note that these are not official minutes and were not reviewed by the NBC prior to publication.

Submissions to Lockbox. The lockbox is staffed by private contractors who review the case submission for compliance with required criteria (e.g. signature, visa availability). If the criteria are not met, the lockbox will reject the case and return it to the applicant. If the criteria are met, the fee will be accepted and a receipt notice will be sent to the applicant and representative. The physical file will then be assembled and sent to the NBC. In a case where an applicant’s eligibility for adjustment of status may not be apparent to lockbox staff (e.g. applicant asserts eligibility for an earlier priority date), the applicant can avoid rejection of the application in the mailroom by marking box (h) – “Other” – on the I-485 as the eligibility category, and then writing in “ Insist to File.”

All application submissions to the lockbox are scanned, even if the submission is rejected and returned to the applicant. If you think your client’s case was improperly rejected at the lockbox, you can contact the lockbox at lockboxsupport@dhs.gov.

Evidence Review. Once the case file is received at the NBC, a biometrics appointment is scheduled and a review is conducted to ensure that all required initial evidence has been submitted. If the required evidence is incomplete, a Request for More Evidence (RFE) will be issued, and no applications for ancillary benefits (e.g. advance parole, employment authorization) will be processed until a response to the RFE is submitted. Applicants are given 87 days to respond to an RFE; if no response is submitted and the reviewing officer determines that the RFE was needed, the case will be denied due to abandonment. Advocates who receive RFEs that are not clear should bring this to the attention of the NBC; this can be done by sending in correspondence asking for clarification of the RFE.

An applicant who does not have documentary proof of admission but asserts eligibility for adjustment of status under INA § 245(a) based on his or her affidavit will get a “system-generated” RFE, but the case should still be forwarded to the District Office for interview, and assessment of the applicant’s asserted eligibility. Similarly, if the applicant asserts eligibility for adjustment of status under INA § 245(i) based on grandfathering, but doesn’t have proof of the prior petition, the NBC will issue an RFE. If the applicant responds with an affidavit in the absence of additional proof, the case should be forwarded to the District Office for interview and consideration of the asserted eligibility for 245(i).

An applicant issued an RFE for proof of parent/child relationship may decide to submit DNA evidence; this can be done on the initiative of the petitioner and cannot be required by CIS in any event. If an applicant decides to reply to the RFE with other evidence of parent/child relationship, the applicant will not get a second opportunity to supplement the record with DNA test results.

The NBC does not review any waivers of inadmissibility nor make requests for submission of a waiver

Security Checks. The NBC is also responsible for consolidating the application with any other existing files relating to the applicant and doing security checks. The “IBIS” security checks are conducted using the name and date of birth of petitioners, beneficiaries and applicants and running them through various law enforcement data bases. In most instances, even where there is a “hit”, the case will be forwarded to the district office for review at the interview. Where the IBIS security check raises an Adam Walsh Act issue regarding the petitioner, the NBC will issue a biometrics appointment notice to the petitioner. In the event that the NBC determines that the petitioner has a listed offense against a minor, a Notice of Intent to Deny/Request for More Evidence will be issued to the petitioner, giving the petitioner 87 days to submit proof that the she or he does not have a conviction for a specified offense against a minor or that approval of the petition will not pose any risk to the beneficiary.

Surviving Relatives. INA § 204(l) cases are forwarded by the NBC to the District Office for adjudication. These are cases where the petitioner died while the I-130 was pending or the adjustment of status application was pending.

An applicant who qualifies for humanitarian reinstatement may apply for this relief concurrently with an application for adjustment of status. The NBC will forward the application, including the request for humanitarian reinstatement, to the District Office for consideration

Hague Convention Cases. There is no electronic processing available for Hague cases, and applications are filed with the lockbox. The Lockbox reviews the submission to determine that the form is complete and signed and that the fee is paid; the case is then forwarded to the NBC and assigned a case number and a SIM receipt number. If the case is approved after evidence review, a Form 800A is issued which constitutes provisional approval; final approval only takes place after the Department of State decides to issue a visa to the adoptive child.

Visa Retrogression. The NBC is the holding center for case files of adjustment applicants who have been interviewed and found approvable but for visa retrogression.

Priority date checks are run every three weeks to determine if a waiting case now has a current priority date. When a date becomes available, the NBC staff checks to see if the biometrics and IBIS checks are current. If so, the application is approved at the NBC.

Watch Out for these Filing Errors: The NBC noted that common filing errors include: (a) marking the wrong eligibility category on the I-485 form; (b) failing to submit an Affidavit of Support for the petitioner when using a joint sponsor because the petitioner lacks sufficient income; (c) double-counting an immigrating spouse in the affidavit of support household size; (d) failing to submit an SSA 1099 to prove social security earnings; and (e) failing to provide a physical address, in addition to a PO Box address.

In a deeply split decision, with separate concurring and dissenting opinions, the en banc Ninth Circuit significantly expanded the reach of its “modified categorical approach” for deciding whether a conviction was an aggravated felony or a crime involving moral turpitude. The court overturned a prior en banc decision, Navarro-Lopez v. Gonzales, 503 F.3d 1063 (9th Cir. 2007), which had governed immigration cases arising in the Ninth Circuit since 2007.

The practical effect of the decision will be to allow immigration courts in the Ninth Circuit to examine more of the facts offered by the prosecution in the earlier, criminal proceedings. Under a strict categorical approach, first outlined by the U.S. Supreme Court in 1990 (in Taylor v. U.S., 495 U.S. 575 (1990)), the immigration court was not to consider the particular facts underlying the conviction, but only the statutory definition of the conviction. Courts were to consider the elements of the crime of conviction in general, and not try to evaluate the defendant’s alleged conduct.

Eventually, a “modified categorical approach” was developed. Courts apply the modified categorical approach if the conviction is not categorically an aggravated felony, such as when the crime as described by the federal defining statute (e.g., “burglary”) does not match precisely how the crime is defined by the state law under which the person was convicted. For example, INA § 101(a)(43)(G) says a “burglary” offense may be an aggravated felony. However, the federal statutes and different states’ statutes define “burglary” differently. Some require proof of more or different elements than others.

How the modified categorical approach operates in reality has been the subject of much litigation at all levels, from the immigration courts to the U.S. Supreme Court. In this latest iteration, the Ninth Circuit, in the critical words of one of the separate opinions, “has converted the modified categorical approach into a modified factual one.”

The majority opinion in Aguila-Montes de Oca says the purpose of the modified categorical approach is to determine: (1) what facts the state conviction necessarily rested on, and (2) whether these facts satisfy the elements of the generic [federal] offense. In making this determination, courts may look beyond the record of conviction and the requirements of the generic statute. Courts can avoid “evidentiary disputes” about the prior criminal proceedings, the majority opinion says, “by relying only on documents that give us the ‘certainty of a generic finding’ including ‘the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.’”

In addition, the majority expressly overruled the “missing element” rule of Navarro-Lopez and subsequent cases relying on it. The “missing element rule” said that the modified categorical approach would not apply when the crime of conviction was missing an element of the generic crime. When an element of the generic crime is missing, Navarro-Lopez said, logically a court never could find that the jury was actually required to find all the elements of the generic crime. Reversing, the Aguila-Montes de Oca majority held that a missing-element statute can be examined under the modified categorical approach. However, courts “must exercise caution in determining what facts a conviction ‘necessarily rested’ on. It is not enough that an indictment merely allege a certain fact or that the defendant admit to a fact; the fact must be necessary to convicting that defendant.” [emphasis in original].

Practitioners can be certain that this is not the last word from this court or others, as the government continues its policy focus on removal of people with even old and relatively minor convictions, and the courts apply the INA’s sometimes unforgiving provisions.

On September 6, 2011, the USCIS issued proposed regulations implementing changes to the Immigration and Nationality Act (INA) relating to Special Immigrant Juvenile Status (SIJS) (76 FR 54978) (Sept. 6, 2011). SIJS is an immigration benefit available to children who have been the victims of abuse, abandonment or neglect. The proposed regulations incorporate several legislative amendments culminating in the significant changes that were made by the William Wilberforce Trafficking Victims Protection Reauthorization act of 2008 (TVPRA 2008).

Age-Out Provisions. Under the TVPRA 2008 and the proposed regulations, a petition for Special Immigrant Juvenile Status (Form I-360) may be approved as long as the child was under the age of 21 when the petition was filed. Additionally, the proposed regulations no longer provide for automatic revocation of the petition of an applicant who turns 21 prior to the adjudication of the application for adjustment of status.

Juvenile Court Dependency. Prior to the TVPRA 2008, the INA required that the juvenile court make a finding that the child was eligible for long term foster care. While many advocates successfully pushed the boundaries of the statute, there was concern that only children who were in state foster care were eligible for SIJS. The TVPRA 2008 amended the statute to allow for eligibility for a child who had been declared dependent on a juvenile court, or who had been legally committed to or placed under the custody of a State agency or department of a State, or an individual or entity appointed by a State or juvenile court. The proposed regulations clarify that adoption and guardianship proceedings fall under the meaning of the statute.

Juvenile Court Jurisdiction. The previous regulations required that the juvenile court maintain jurisdiction over the child through adjustment of status. The proposed regulations require that juvenile court dependency remain in effect through adjudication unless the child’s age prevents continued jurisdiction. Many state juvenile courts will not maintain jurisdiction beyond the age of 18. The TVPRA 2008 locks in the child’s age at the time of the filing of the I-360, therefore in order to remain consistent with this change, the proposed regulations provide this exception to the ongoing juvenile court jurisdiction requirements if the reason for the lack of jurisdiction is solely age.

Viability of Reunification with One or Both Parents. One of the most significant changes in the statute that was made by the TVPRA of 2008 was to allow for SIJS eligibility where reunification with one or both parents is not viable due to abuse abandonment or neglect or a similar basis under state law. This change has led to what many advocates call “one-parent SIJS cases,” where the child was abused, abandoned, or neglected by one parent but resides with the other parent. The proposed regulations do not offer any clarification about how USCIS views these cases. The language in the regulations merely mirrors the language in the statute.

Abuse, Abandonment or Neglect or Similar Basis under State Law. The preamble to the proposed regulations contains useful language stating that the viability of reunification due to abuse, abandonment, or neglect, or a similar basis under state law, is a question that lies within the expertise of the juvenile court, after applying the relevant state law. In addition, the preamble notes that the concepts of abuse, abandonment and neglect are not defined in the INA and therefore derive from state law and vary from state to state.

Consent Requirements. Issues of consent have been a significant source of confusion and litigation. The INA states that petitioners for SIJS must obtain the consent of the Secretary of Homeland Security. In the case of children who are not in the custody of the Department of Health and Human Services (HHS), the federal agency responsible for the care and custody of unaccompanied alien children apprehended by the Department of Homeland Security, the proposed regulations clarify that consent to the juvenile court order is not required. Rather, the approval of the I-360 application serves as the consent of the Secretary of Homeland Security. The consent requirement differs for unaccompanied alien children in the custody of HHS. A petitioner for SIJS who is in the custody of HHS must seek “specific consent” from HHS if he or she seeks a juvenile court order that would alter his or her custody status or placement.

180-Day Adjudication. The TVPRA of 2008 added a requirement that USCIS adjudicate I-360 petitions for SIJS within 180 days. The proposed regulations clarify that the 180-day period of time begins when a receipt notice from USCIS is issued. If USCIS issues a request for evidence (RFE) on the case, the 180-day period will start over from the date when USCIS receives the required information.

Adjustment of Status. The proposed regulations also implement changes to the statute in the TVPRA 2008 relating to the grounds of inadmissibility and adjustment of status. The following grounds of inadmissibility do not apply to those seeking adjustment of status as a special immigrant juvenile: public charge (INA § 212(a)(4)); labor certification (INA § 212(a)(5)(A)); aliens present without inspection (INA § 212(a)(6)(A)); misrepresentation (INA § 212(a)(6)(C)); stowaways (INA § 212(a)(6)(D)); documentation requirements (INA § 212(a)(7)(A)); and aliens unlawfully present (INA § 212(a)(9)(B)). The following grounds of inadmissibility cannot be waived : conviction of certain crimes (INA § 212(a)(2)(A)); multiple criminal convictions (INA § 212(a)(2)(B)); controlled substance traffickers (INA § 212(a)(2)(C)); and security, terrorism, foreign policy, Nazis, genocide (INA § 212(a)(3)(A, B, C, E)). Any other ground of inadmissibility may be waived for humanitarian reasons, family unity, or in the public interest.

VAWA 2005, signed into law in January 2006, extended self-petitioning eligibility to (a) abused parents of adult U.S. citizens, and (b) abused sons and daughters of U.S. citizens and lawful permanent residents over age 21 and under 25, who may apply as self-petitioning children if the abuse was a central reason for the delay in filing. Recent policy memoranda issued by USCIS provides new guidance on eligibility to self-petition in each of these categories

Self-Petitioning As an Abused Child after Attaining Age 21. The USCIS guidance, issued on September 6, 2011, provides that an eligible self-petitioner in this category must show that she or he was qualified to file the self-petition on the day before attaining age 21. This means, for example, that the qualifying battery or extreme cruelty must have occurred before the applicant turned 21. Citing INA § 204(a)(1)(D)(v), the guidance also requires that the self-petition be filed before the applicant’s 25th birthday, along with supporting documentation.

On the critical issue of establishing that abuse was “one central reason for the delay in filing,” the USCIS memorandum describes a central reason as one that is caused by or incident to the battery of extreme cruelty experienced by the applicant. In other words, the applicant must establish a connection between the battery or extreme cruelty and the delay in filing. Examples in the guidance include situations where: (1) the self-petitioner is subjected to abuse close in time to turning 21, so that there is insufficient time to submit an application before attaining age 21, and (2) the self-petitioner is so traumatized by abuse that she or he is unable to apply before turning 21. The guidance notes that the adjudicating officer must evaluate each application on a case-by-case basis, and consider the totality of circumstances, including any credible evidence that the qualifying abuse was one central reason for the delay in filing.

The memo concludes that self-petitioners in this category must be unmarried because the applicants will be treated as self-petitioning children of U.S. citizens under INA § 204(a)(1)(A)(iv) or self-petitioning children of lawful permanent residents under § 204(a)(1)(B)(iii). Applications filed by self-petitioners who are married at the time of filing or at the time of petition adjudication will be denied. However, if the self-petitioner marries after filing, the petition may be approved if the marriage is terminated before the petition is adjudicated.

Approved self-petitioners in this category are treated as if the self-petition was filed on the day before the applicant turned 21. For Child Status Protection Act (CSPA) purposes, this should mean that a self-petitioning son or daughter of a U.S. citizen will be considered an immediate relative child who does not age-out of this category. Self-petitioning sons and daughters of lawful permanent residents are classified in the F-2A category, and will have to do an adjusted age calculation once the priority date is current to determine if the CSPA will allow them to remain in that category. If not, as the guidance notes, INA § 204(a)(1)(D)(i) would allow the aged-out self-petitioner to convert to the appropriate category, which in this situation would be the F-2B classification.

Example: Cora, who turned 21 on January 15, 2008, filed a self-petition as the abused child of an LPR on July 30, 2010. She established that abuse was a central reason for the delay in filing and the petition is approved on February 14, 2011. Under the guidance, Cora’s petition is adjudicated as if she filed on January 14, 2008. Since the priority date is current, Cora will determine if she qualifies to remain in the F2A category under CSPA by subtracting from her chronological age the amount of time between the filing of the petition (January 14, 2008) and the date the petition was approved (February 14, 2011). In this case, that will allow Cora to subtract 3 years and one month from her actual age.

The F-2A priority date in Cora’s case became current on July 1, 2011, when Cora was 24 years, 5 months and two weeks old. With the adjusted age calculation that subtracts 3 years and two months from Cora’s actual age, Cora’s adjusted age is still over 21 and she will convert to the F-2B category to wait for a current priority date.

Eligibility to Self-Petition as the Abused Parent of an Adult U.S. Citizen. The August 30, 2011 USCIS memoranda addressing this VAWA 2005 self-petitioner category begins by clarifying that qualifying parent/child relationships include stepparents and adoptive parents of U.S. citizens. In the case of a stepparent, the applicant must establish that the marriage creating the stepparent relationship took place before the U.S. citizen stepchild turned 18. If the step-relationship is no longer in legal existence at the time of filing, due to death, legal separation or divorce, the self-petitioning stepparent remains eligible only if she or he can show that the relationship between the stepparent and stepchild continues to exist at the time of filing. Similarly, adoptive self-petitioning parents must show that the qualifying adoptive relationship was created when the U.S. citizen child was under age 16, and otherwise meets the requirements for an adoptive parent/child relationship under INA § 101(b)(1)(E), (F), or (G).

The CIS guidance reviews the basic eligibility requirements for self-petitioners in this category, which parallel the requirements for self-petitioning spouses and children. Specifically, the abused parent must show that he or she:

Possesses the requisite qualifying relationship to a U.S. citizen son or daughter who is at least 21 years of age when the self-petition is filed. A qualifying self-petition may be filed by the parent of a U.S citizen who was at least 21 years old and died within two years prior to filing the petition. An abused parent may also self-petition within two years of the loss or renunciation of citizenship of a former U.S. citizen son or daughter, where the loss of citizenship is a result of an incident of domestic violence and the U.S. citizen was at least 21 years of age at the time of the loss of status;

Is a person of good moral character;

Resides with or previously resided with the abusive U.S. citizen son or daughter; and

Has been subjected to battery or extreme cruelty by the U.S. citizen son or daughter.

The self-petitioner must submit evidence to satisfy each of these eligibility requirements, and the guidance gives examples of potential documents to submit for each of these eligibility requirements. As the USCIS memo notes, secondary evidence may be submitted by self-petitioning parents as appropriate to establish these requirements; adjudicators must consider all relevant credible evidence. As is the case for other VAWA self-petitioners, abused self-petitioning parents do not need to be living in the United States at the time of filing.

The USCIS will not issue prima facie determinations to self-petitioning parents because they are not a recognized as ‘qualified aliens’ for public benefits purposes. Self-petitioning parents are also not eligible to confer derivative benefits; listing a derivative beneficiary will not result in denial of the petition but a listed derivative is not eligible for any benefits.

For More Information. Both agency memos can be accessed on the USCIS website by following the homepage link to “Laws” and then using the link to policy memoranda, listed both by date and topic, The guidance will also be integrated in the Adjudicator Field Manual at Chapter 21.14(a) (on self-petitioning as an abused child over age 21) and at Chapter 21.15 (on self-petitioning parents). Note that the current Form I-360 and instructions do not reflect these new developments. In particular, a self-petitioning parent will need to write in this category on the 360 form, because it is not currently listed.

U.S. Department of Justice Office on Violence Against Women (OVW), in partnership with

Catholic Legal Immigration Network, Inc. (CLINIC)

November 3-December 8, 2011

This training will cover select issues in self-petitioning and gaining permanent residence under the Violence Against Women Act. This four-week course provides participants with previous training and/or experience in VAWA cases more in-depth instruction, updated information and an opportunity to further develop the skills necessary to effectively prepare and file self-petitions . Topics covered will include: developments in self-petitioning eligibility requirements and a look at complex eligibility issues; best practices in preparing and documenting self-petitions; assessing and responding to problems throughout the self-petitioning process such as Requests for Evidence and Notices of Intent to Deny; and issues related to inadmissibility, waivers and adjustment of status. Please see the course outline for a more detailed description of the topics covered.

The course requires a time commitment of approximately four hours per week for each of the four weeks of the course. This time will be spent in different activities, including reading assignments, exercises, and participation in five webinars conducted on select Thursdays, as listed in the detailed course schedule. The course will be interactive, with opportunities for online and real-time discussion among students, and between the students and the instructors. The instructors for this course will be CLINIC attorneys Jennie Guilfoyle, Kristina Karpinski, and Susan Schreiber. For questions about the course content, please contact Susan Schreiber at sschreiber@cliniclegal.org.

For a detailed course outline, including the dates and times of the required webinars, click here. Note that in this e-learning course, successful completion of the course requires participation, not simply registration. Before you register, please carefully consider the dates and times of the scheduled webinars, as well as the additional time required each week for completion of the reading and assignments. Additionally, please note that the course is geared toward individuals who already have some training and or experience handling VAWA cases.

Also, please note that in order to access the audio portion of the webinars participants will need computer speakers or headphones.

Registration: The training is open to OVW grantees from the Legal Assistance for Victims grant program, the Culturally and Linguistically Specific Services program, the Rural grant program and the STOP program. Registration is limited to 35 participants. The deadline for registration is October 27th, or sooner if registration is filled. For registration information contact Chris Ozaki at 415-394-9371 or at cozaki@cliniclegal.org.

Please note that we need the full name and a working email address for each individual taking this course. We will communicate with each registrant via email only, so it is very important that we have the correct name and email address for each registrant. On the registration form, please provide us the name and email address of the individual who will be taking the course.

This project is supported by Grant No. 2007-TA-AX-K036 awarded by the Office on Violence Against Women, U.S. Department of Justice. The opinions, findings, conclusions, and recommendations expressed in this program are those of the author and do not necessarily reflect the views of the Department of Justice, Office on Violence Against Women.

This memorandum provides an introduction to applicable international human rights law and commentary supporting a right to free legal counsel for UASC navigating U.S. immigration proceedings. The arguments indentified in this memorandum are particularly based on the CRC, which is not binding on the United States as a consequence of its non-ratification. Nonetheless, given the CRC’s near universal ratification record, advocates can use arguments based on the CRC for its persuasive value before policymakers and judges in the United States. If and when the United States ratifies and implements the CRC, advocates will then be able to argue that its provisions are binding in the United States. That would also be the case if a determination is made that some or all of the CRC’s provisions have become customary international law.

This memorandum identifies five potential arguments which could be utilized by U.S.-based advocates to campaign for a right to free legal counsel for UASC in immigration proceedings. Three of these arguments have the potential to provide a right to free legal counsel for all UASC in the United States. The first argument is based on utilizing the bests interests of the child and non-discrimination concepts, which are pivotal to the CRC, the paramount international human rights instrument dedicated to the defense of children’s rights. This argument essentially provides that respect for the best interests of UASC requires implementation of procedural safeguards, which includes the provision of free legal counsel in immigration proceedings. The second broad argument is based on Article 20(1) of the CRC which singles out children temporarily or permanently deprived of their family environment for special protection and assistance. An argument for the provision of free legal counsel for such children navigating immigration proceedings is founded on Committee guidance. The last all encompassing argument is based on access to justice and fairness and is underpinned by provisions in the CRC as well as guidance by the Committee and UNHCR. Provisions of the CRC and Committee and UNHCR guidance also support arguments for a right to free legal counsel for two narrower categories of UASC, those detained and those seeking asylum.

Once advocates identify the most compelling and promising arguments, further research on the merits of these arguments will be undertaken. To this end, some additional avenues for research have been identified.

E. UASC SEEKING ASYLUM HAVE A RIGHT TO FREE COUNSEL

Finally, another more limited argument open to advocates relates to a right to free legal counsel for UASC seeking asylum in the United States.

As discussed earlier, in addition to singling out children who are temporarily and permanently deprived of their family environment, the CRC also imposes obligations on States Parties to ensure that asylum-seeking children receive appropriate protection.[1] Within this context, the Committee has repeatedly elaborated that appropriate protection measures include the provision of free, qualified legal representation where UASC are navigating asylum procedures.[2] The Committee has also noted that the legal representative should be present at all interviews with the child.[3]

UNHCR’s guidance confirms that the principles of non-discrimination and best interests of the child should inform procedural aspects of a determination of a child’s refugee status.[4] In this regard, UNHCR’s commentary highlights the importance of qualified legal representation for children who are principal applicants in asylum procedures as a minimum procedural safeguard to ensure fairness in refugee status determinations.[5]

An argument on the right to free legal counsel based on Article 22(1) of the CRC as well as the commentary and guidance of the Committee and UNHCR should highlight the importance of legal representation for UASC in U.S. immigration proceedings. For example, empirical research has highlighted the critical importance of legal representation for success in U.S. asylum proceedings.[6] Additionally, an UASC’s chance of gaining asylum could be impacted by the risk that he/she may not be able to clearly articulate subjective fear and relevant experiences,[7] and where adjudicators are unfamiliar with forms and manifestations of persecution experienced by children (i.e. under-age recruitment, trafficking, sexual exploitation, female genital mutilation, forced marriage and persecution of kin) and fail to handle children’s claims in an age-sensitive manner.[8]

If attempts are made to advocate for a right to free legal counsel for UASC seeking asylum in the United States, it may be valuable to keep abreast of developments in Europe regarding the proposed recast (a consolidated legislative enactment, which incorporates existing and additional amendments)[9] of the Council Directive on Minimum Standard on Procedures in Members States for Granting and Withdrawing Refugee Status.[10] In its proposed Article 21(4), the recast states that subject to limited exceptions, “unaccompanied minors shall be granted free legal assistance with respect to all procedures provided for in this directive.”[11] In light of the magnitude of migration of UASC into Europe, if and when this recast becomes operative,[12] it arguably has the capacity to significantly influence consensus in State practice, which in turn may be of persuasive value in influencing reform in the United States.

At present, it should be noted that some European countries provide legal representation to UASC in asylum proceedings in certain circumstances. For example, in Denmark, there are strict rules for unaccompanied minors in appeals proceedings. In addition to the general right to have counsel appointed by the Refugee Appeals Board, Denmark provides all unaccompanied minors with counsel in cases where the Danish Immigration Service does not deem the case appropriate for a hearing in front of the Refugee Appeals Board.[13] “If the Danish Immigration Service submits a case concerning a residence permit under section 7 for a child falling within subsection (1) to the Danish Refugee Council... the Danish Immigration Service shall at the same time assign counsel to the child unless the child has itself retained one.”[14] A Section 7 residence permit is essentially the grounds to claim refugee status, subsection 1 outlines the definition of an unaccompanied minor, and the Danish Refugee Council reporting only occurs when immigration officials deem the case unsuitable for the Refugee Appeals Board. So, in addition to being represented in front of the Appeals Board, unaccompanied minors have a right to legal counsel even if their case is denied a hearing in front of that board.[15]

Other countries also have general requirements regarding free legal counsel or legal aid that often cover UASC in asylum proceedings.[16] For example, in the United Kingdom, means-tested, publicly-funded legal aid is available to asylum seekers who qualify.[17] Outside Europe, both New Zealand and Canada have legal aid schemes which cover UASC. In New Zealand, for example, all refugee status determinations, including all applicable appeals, are eligible for legal aid under part 2, section 7, of the Legal Services Act 2000.[18] Guideline 3 on Child Refugee Claimants issued by the Canadian Immigration and Refugee Board, provides that the Immigration Act (now the Immigration and Refugee Protection Act) requires the designation of a representative for all child claimants.[19] One duty imposed on designated representatives relates to the retention of counsel,[20] and federally-funded legal aid is available to retain counsel.[21]

If advocates decide to campaign for a right to free legal counsel for UASC seeking asylum, given the shared common law heritage between the United Kingdom, Canada, New Zealand and the United States, consideration should be given to undertaking additional research on the provision of legal aid to UASC in asylum proceedings in these countries to determine whether lessons from these countries may lend assistance to advocacy in the United States. Additionally, case law research should be undertaken in applicable countries to determine whether national and regional courts have made persuasive pronouncements regarding the importance of counsel for children and particularly UASC in asylum proceedings.

[7]See generally, Immigration and Refugee Board of Canada, Guideline 3: Child Refugee Claimants Procedural and Evidentiary Issues, available at http://www.irb.gc.ca/eng/brdcom/references/pol/guidir/pages/ChiEnf.aspx (last accessed December 8, 2010); The Committee on the Rights of the Child, General Comment No. 6, at paragraph 66; See e.g. United Nations High Commissioner for Refugees, Guidelines on Child Asylum Claims, at paragraph 11; United Nations High Commissioner for Refugees, Guidelines on Unaccompanied Children Seeking Asylum, at paragraph 8.6.

[8]See generally Executive Committee, Conclusion on Children at Risk; United Nations High Commissioner for Refugees, Guidelines on Child Asylum Claims; The Committee on the Rights of the Child, General Comment No. 6, at paragraphs 3, 59 and 74.

[9] Recasting is like codification in that is brings together in a single new legislative act all the amendments made to it. The new act passes through the full legislative process and repeals all the acts being recast. But unlike codification, recasting involves new substantive changes, as amendments are made to the original act during preparation of the recast text. See http://ec.europa.eu/dgs/legal_service/recasting_en.htm (last accessed December 8, 2010)

[12] As a consequence of the entry into force of the Treaty of Lisbon on 1 December 2009, the European Parliament and the European Council will have to decide on proposals presented by the Commission (such as the recast proposal on granting and withdrawing asylum status discussed above), on the basis of Treaties, before that date and that are at different stages of the legislative process. As of August 2010, the recast proposal is awaiting a parliamentary decisions/first parliamentary reading; See http://www.europarl.europa.eu/oeil/FindByProcnum.do?lang=2&procnum=COD/2009/0165. This link will continue to be updated as the recast moves through the relevant legislative process.

D. DETAINED UASC HAVE A RIGHT TO FREE COUNSEL

The three arguments discussed in the preceding sections could assist in providing a right to free legal counsel for all UASC navigating immigration proceedings in the United States. A narrower argument that is also open to advocates concerns the promotion of a right to free counsel for detained UASC.

In this regard, the explicit reference to prompt legal assistance for detained children in Article 37(d) when combined with the Committee’s interpretation that Article 37(d) relates to prompt and free legal assistance could be utilized by advocates to campaign for a right to free legal assistance for all UASC in U.S. custody.

Under this argument, advocates should utilize, the Committee’s liberal interpretation of deprivation of liberty, which indicates “that the rights of a child deprived of his/her liberty, as recognized in the Convention, apply with respect to children… placed in institutions for the purposes of care, protection or treatment, including… child protection or immigration institutions.”[1] This interpretation arguably includes not only children in DHS and DHS-contracted detention facilities, but also the much larger number of UASC who have been placed in facilities contracted by the Office of Refugee Resettlement/Health and Human Services for the purposes of care and protection.

In light of the near universal ratification of the CRC, a campaign for a right to free legal counsel for detained UASC may benefit from an examination of State practice with regard to Article 37(d). A useful starting point for this analysis will include State Party reports submitted to the Committee, followed by a review of national law and policies. Such an examination may highlight the extent to which there is scope to argue that the requirements under Article 37(d), particularly as interpreted by the Committee, have become customary international law. In this regard, attention should be paid to European countries, which have experienced a pronounced increase in the migration of UASC in recent times.

After determining which States have implemented laws consistent with Article 37(d) of the CRC, it may also be valuable to undertake background research on efforts leading to the implementation of the relevant national laws in those States. This may highlight advocacy and campaign lessons for U.S.-based advocates. In this regard, a useful starting point would be Sweden, which requires public counsel to be appointed for children held in detention if they do not have a custodian in the country.[2]

[1] Report of the Committee on the Rights of the Child, Sixty-third Session, Supp. 41, at 55, footnote a.

C. FAIRNESS/ACCESS TO JUSTICE REQUIRES FREE LEGAL COUNSEL FOR UASC

A complementary argument to those highlighted in the preceding two subsections is one based on fairness/access to justice. As discussed above, the CRC explicitly provides that children temporarily or permanently deprived of their family environment are entitled to “special protection and assistance provided by the State.”[1]As regards the subset of asylum seeking children, the CRC also requires States to take appropriate measures to ensure that such children “receive appropriate protection” in the enjoyment of rights set forth in the Convention and other international human rights or humanitarian instruments to which they are a party.[2] Regarding the content of special protection, the Committee in GC6 states that it encompasses the provision of legal representation, in addition to the provision of guardianship for UASC, where they are involved in administrative, judicial or asylum procedures.[3] Similarly, in elaborating the content of appropriate protection for asylum seeking children, the Committee states that UASC should “in all cases, be given access, free of charge, to a qualified legal representative”.[4] The Committee further states that the refugee status applications of UASC must be given priority and “every effort should be made to render a decision promptly and fairly.”[5] (emphasis added)

Articles 20(1) and 22(1) and the Committee’s interpretation of these articles in GC6 together arguably reflect an attempt to incorporate notions of fairness and access to justice by accommodating the specific protection needs of children temporarily or permanently deprived of their family environment and UASC seeking asylum. The Committee’s interpretation suggests that where such children are navigating asylum, administrative or judicial procedures, mere guardianship is inadequate to comply with the requirement to provide appropriate or special protection. Rather, the provision of legal representation is a necessary component to ensuring that the rights of such children are adequately protected. In this regard, appropriate and special protection seems to reflect an attempt to level the playing field and ensure that UASC who have specific protection needs and who by nature of their age do not have the capacity to represent themselves have a fair opportunity to defend and enjoy their rights. [6]

In a similar vein to the Committee’s guidance, UNHCR’s commentary also correlates the provision of legal representation with notions of fairness. In its Guidelines on Child Asylum Claims, UNHCR notes that due to their young age, dependency and relative immaturity, children should enjoy specific procedural safeguards, including legal representation, to ensure that fair refugee status determination decisions are reached with respect to their claims.[7]

In GC6, the Committee also states that “[t]he ultimate aim in addressing the needs of unaccompanied and separated children is to identify a durable solution that addresses all their protection needs and takes into account their view…”[8] In this regard, a legitimate argument exists to the effect that fair asylum, judicial and administrative proceedings are necessary to identify durable solutions that, address all the protection needs of UASC, are in their best interests and protects their legal rights such as those relating to non-refoulement.

Within this framework, and in light of the acute vulnerability of UASC, advocates can argue that in order to ensure fairness/access to justice for UASC, they should be provided with free legal representation in immigration proceedings. Fairness requires that individuals who do not have the capacity to protect their legal rights be provided with the necessary procedural safeguards, including free legal representation. The Committee’s interpretation of special and appropriate protection in GC6 for children temporarily deprived of their family environment and asylum seeking children, respectively, supports this position.

If advocates decide to campaign for a right to free legal counsel on the basis of an argument related to fairness/access to justice, additional research on the content of “special protection” and “appropriate protection” should be undertaken. Beyond the committee’s interpretation of those terms in GC6, it may also prove valuable to exhaustively review the Committee’s recommendations to State Parties in individual State Party reports, and to review relevant literature as well as regional and national jurisprudence.

[6] Despite the primarily implicit nature of this argument, in paragraph 72 of its General Comment No. 6, the Committee explicitly refers to fairness in refugee status determination procedures for UASC. Additionally, the Committee’s reasons for issuing General Comment No. 6 were at least partially motivated by gaps in protection experienced by UASC. See Committee on the Rights of the Child, General Comment No. 6, paragraph 3, which states that the “issuing of the general comment is further motivated by the Committee’s identification of a number of protection gaps in the treatment of [UASC] children, including the following: unaccompanied and separated children face greater risks of, inter alia, sexual exploitation and abuse, military recruitment, child labour (including for their foster families) and detention…. In some situations, such children have no access to proper and appropriate identification, registration, age assessment, documentation, family tracing, guardianship systems or legal advice. In many countries, unaccompanied and separated children are routinely denied entry to or detained by border or immigration officials….” See also, Committee on the Rights of the Child, General Comment No. 6, at paragraph 1.

[7] United Nations High Commissioner for Refugees, Guidelines on Child Asylum Claims, at paragraphs 65 and 69.

[8] Committee on the Rights of the Child, General Comment No. 6, at paragraph 79.

B. CHILDREN TEMPORARILY OR PERMANENTLY DEPRIVED OF THEIR FAMILY ENVIRONMENT HAVE A RIGHT TO FREE LEGAL COUNSEL

Another overarching argument open to U.S.-based advocates is one based on Article 20(1) of the CRC. Article 20(1) recognizes the heightened vulnerability of children who do not have the protection of a family environment; it provides that any child who is “temporarily or permanently deprived of his or her family environment… shall be entitled to special protection and assistance provided by the State” (emphasis added). As children who are temporarily or permanently deprived of their family environment, UASC fall within the protection afforded by this article.[1]

While special protection and assistance in not defined in the CRC, in paragraph 33 of GC6, the Committee in interpreting Article 20(1)[2] provides that “States are required to create the underlying legal framework and to take necessary measures to secure proper representation of an unaccompanied or separated child’s best interests.” In this context, the Committee subsequently states in paragraph 36 that “[i]n cases where children are involved in asylum procedures or administrative or judicial proceedings, they should, in addition to the appointment of a guardian, be provided with legal representation.”

Based on Article 20(1) and the Committee’s interpretation of this article in paragraphs 33 and 36 of GC6, advocates can argue that UASC are entitled to special protection and assistance from the State, and that this concept of special protection and assistance encompasses the provision of free legal representation for UASC during immigration proceedings. If advocates decide to campaign for a right to free legal counsel on this basis, additional research should be undertaken on the interpretation of “special protection and assistance” as well as “protection and assistance”. This should include a review of relevant literature, a review of regional and national jurisprudence as well as an exhaustive review the Committee’s recommendations to State Parties.

[1]See Committee on the Rights of the Child, General Comment No. 6, at paragraph 39.

[2] Article 20(1) is interpreted together with Article 18(2). Article 18(2) of the CRC states that “[f]or the purpose of guaranteeing and promoting the rights set forth in the present Convention, States Parties shall render appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities and shall ensure the development of institutions, facilities and services for the care of children.

III. POTENTIAL ARGUMENTS

This section identifies potential arguments, which could be utilized by U.S.-based advocates to promote a right to free legal counsel for UASC navigating immigration proceedings in the United States. The arguments are intended to provide a broad framework within which advocacy strategies and campaigns promoting a right to free legal counsel can be designed. Once advocates identify the most compelling and promising arguments, further research on the merits of these arguments will be undertaken.

Within this context, the following potential arguments are discussed:

§ Respect for the best interests of the child requires procedural safeguards for UASC, which includes the provision of free legal counsel in immigration proceedings;

§ Children who are temporarily or permanently deprived of their family environment have a right to free legal counsel;

A. The Best Interests of the Child Support the Right to Free Legal Counsel

An overarching argument that is open to U.S.-based advocates is one based on respect for the best interests of the child.

As previously discussed, the non-discrimination principle expressed in Article 2 of the CRC imposes an obligation on States Parties to respect and ensure the rights set forth in the Convention to each child within its jurisdiction without discrimination of any kind, including on the basis of the child’s status as a foreign national. One such right, as identified in Article 3 of the CRC, requires that the best interests of the child be a primary consideration in all actions concerning children. Accordingly, the combined application of these two articles requires that the best interests of the child be a primary consideration in all actions concerning UASC who are within the jurisdiction of the United States.

According to the Committee, in order to respect the best interests principle, both substantive and procedural safeguards must be implemented.[1] Notably, the Committee highlights that in circumstances where UASC are referred to administrative, judicial or asylum proceedings, a key procedural safeguard includes the provision of a legal representative.[2] Arguably, this wording suggests that a mere right or access to legal representation for UASC is inadequate to ensure respect for their best interests when they are navigating civil proceedings; rather, in such circumstances, there is an obligation on States to provide children with a legal representative in order to ensure respect for their best interests. This argument can be buttressed by highlighting the heightened vulnerability of UASC as acknowledged by ExCom,[3] and the Committee.[4]

If advocates decide to campaign for a right to free legal counsel on the basis of respect for the best interests of the child, additional research on its application to procedural safeguards should be undertaken. This should include a review of relevant literature, a review of regional and national jurisprudence (as the best interests concept is used in many domestic settings) as well as an exhaustive review of the Committee’s recommendations to State Parties.

B. Children Temporarily or Permanently Deprived of their Family Environment have a Right o Free Legal Counsel

Another overarching argument open to U.S.-based advocates is one based on Article 20(1) of the CRC. Article 20(1) recognizes the heightened vulnerability of children who do not have the protection of a family environment; it provides that any child who is “temporarily or permanently deprived of his or her family environment… shall be entitled to special protection and assistance provided by the State” (emphasis added). As children who are temporarily or permanently deprived of their family environment, UASC fall within the protection afforded by this article.[5]

While special protection and assistance in not defined in the CRC, in paragraph 33 of GC6, the Committee in interpreting Article 20(1)[6] provides that “States are required to create the underlying legal framework and to take necessary measures to secure proper representation of an unaccompanied or separated child’s best interests.” In this context, the Committee subsequently states in paragraph 36 that “[i]n cases where children are involved in asylum procedures or administrative or judicial proceedings, they should, in addition to the appointment of a guardian, be provided with legal representation.”

Based on Article 20(1) and the Committee’s interpretation of this article in paragraphs 33 and 36 of GC6, advocates can argue that UASC are entitled to special protection and assistance from the State, and that this concept of special protection and assistance encompasses the provision of free legal representation for UASC during immigration proceedings. If advocates decide to campaign for a right to free legal counsel on this basis, additional research should be undertaken on the interpretation of “special protection and assistance” as well as “protection and assistance”. This should include a review of relevant literature, a review of regional and national jurisprudence as well as an exhaustive review the Committee’s recommendations to State Parties.

C. Fairness/Access to Justice Requires Free Legal Counsel for UASC

A complementary argument to those highlighted in the preceding two subsections is one based on fairness/access to justice. As discussed above, the CRC explicitly provides that children temporarily or permanently deprived of their family environment are entitled to “special protection and assistance provided by the State.”[7]As regards the subset of asylum seeking children, the CRC also requires States to take appropriate measures to ensure that such children “receive appropriate protection” in the enjoyment of rights set forth in the Convention and other international human rights or humanitarian instruments to which they are a party.[8] Regarding the content of special protection, the Committee in GC6 states that it encompasses the provision of legal representation, in addition to the provision of guardianship for UASC, where they are involved in administrative, judicial or asylum procedures.[9] Similarly, in elaborating the content of appropriate protection for asylum seeking children, the Committee states that UASC should “in all cases, be given access, free of charge, to a qualified legal representative”.[10] The Committee further states that the refugee status applications of UASC must be given priority and “every effort should be made to render a decision promptly and fairly.”[11] (emphasis added)

Articles 20(1) and 22(1) and the Committee’s interpretation of these articles in GC6 together arguably reflect an attempt to incorporate notions of fairness and access to justice by accommodating the specific protection needs of children temporarily or permanently deprived of their family environment and UASC seeking asylum. The Committee’s interpretation suggests that where such children are navigating asylum, administrative or judicial procedures, mere guardianship is inadequate to comply with the requirement to provide appropriate or special protection. Rather, the provision of legal representation is a necessary component to ensuring that the rights of such children are adequately protected. In this regard, appropriate and special protection seems to reflect an attempt to level the playing field and ensure that UASC who have specific protection needs and who by nature of their age do not have the capacity to represent themselves have a fair opportunity to defend and enjoy their rights. [12]

In a similar vein to the Committee’s guidance, UNHCR’s commentary also correlates the provision of legal representation with notions of fairness. In its Guidelines on Child Asylum Claims, UNHCR notes that due to their young age, dependency and relative immaturity, children should enjoy specific procedural safeguards, including legal representation, to ensure that fair refugee status determination decisions are reached with respect to their claims.[13]

In GC6, the Committee also states that “[t]he ultimate aim in addressing the needs of unaccompanied and separated children is to identify a durable solution that addresses all their protection needs and takes into account their view…”[14] In this regard, a legitimate argument exists to the effect that fair asylum, judicial and administrative proceedings are necessary to identify durable solutions that, address all the protection needs of UASC, are in their best interests and protects their legal rights such as those relating to non-refoulement.

Within this framework, and in light of the acute vulnerability of UASC, advocates can argue that in order to ensure fairness/access to justice for UASC, they should be provided with free legal representation in immigration proceedings. Fairness requires that individuals who do not have the capacity to protect their legal rights be provided with the necessary procedural safeguards, including free legal representation. The Committee’s interpretation of special and appropriate protection in GC6 for children temporarily deprived of their family environment and asylum seeking children, respectively, supports this position.

If advocates decide to campaign for a right to free legal counsel on the basis of an argument related to fairness/access to justice, additional research on the content of “special protection” and “appropriate protection” should be undertaken. Beyond the committee’s interpretation of those terms in GC6, it may also prove valuable to exhaustively review the Committee’s recommendations to State Parties in individual State Party reports, and to review relevant literature as well as regional and national jurisprudence.

D. Detained UASC have a Right to Free Counsel

The three arguments discussed in the preceding sections could assist in providing a right to free legal counsel for all UASC navigating immigration proceedings in the United States. A narrower argument that is also open to advocates concerns the promotion of a right to free counsel for detained UASC.

In this regard, the explicit reference to prompt legal assistance for detained children in Article 37(d) when combined with the Committee’s interpretation that Article 37(d) relates to prompt and free legal assistance could be utilized by advocates to campaign for a right to free legal assistance for all UASC in U.S. custody.

Under this argument, advocates should utilize, the Committee’s liberal interpretation of deprivation of liberty, which indicates “that the rights of a child deprived of his/her liberty, as recognized in the Convention, apply with respect to children… placed in institutions for the purposes of care, protection or treatment, including… child protection or immigration institutions.”[15] This interpretation arguably includes not only children in DHS and DHS-contracted detention facilities, but also the much larger number of UASC who have been placed in facilities contracted by the Office of Refugee Resettlement/Health and Human Services for the purposes of care and protection.

In light of the near universal ratification of the CRC, a campaign for a right to free legal counsel for detained UASC may benefit from an examination of State practice with regard to Article 37(d). A useful starting point for this analysis will include State Party reports submitted to the Committee, followed by a review of national law and policies. Such an examination may highlight the extent to which there is scope to argue that the requirements under Article 37(d), particularly as interpreted by the Committee, have become customary international law. In this regard, attention should be paid to European countries, which have experienced a pronounced increase in the migration of UASC in recent times.

After determining which States have implemented laws consistent with Article 37(d) of the CRC, it may also be valuable to undertake background research on efforts leading to the implementation of the relevant national laws in those States. This may highlight advocacy and campaign lessons for U.S.-based advocates. In this regard, a useful starting point would be Sweden, which requires public counsel to be appointed for children held in detention if they do not have a custodian in the country.[16]

E. UASC Seeking Asylum have a Right to Free Counsel

Finally, another more limited argument open to advocates relates to a right to free legal counsel for UASC seeking asylum in the United States.

As discussed earlier, in addition to singling out children who are temporarily and permanently deprived of their family environment, the CRC also imposes obligations on States Parties to ensure that asylum-seeking children receive appropriate protection.[17] Within this context, the Committee has repeatedly elaborated that appropriate protection measures include the provision of free, qualified legal representation where UASC are navigating asylum procedures.[18] The Committee has also noted that the legal representative should be present at all interviews with the child.[19]

UNHCR’s guidance confirms that the principles of non-discrimination and best interests of the child should inform procedural aspects of a determination of a child’s refugee status.[20] In this regard, UNHCR’s commentary highlights the importance of qualified legal representation for children who are principal applicants in asylum procedures as a minimum procedural safeguard to ensure fairness in refugee status determinations.[21]

An argument on the right to free legal counsel based on Article 22(1) of the CRC as well as the commentary and guidance of the Committee and UNHCR should highlight the importance of legal representation for UASC in U.S. immigration proceedings. For example, empirical research has highlighted the critical importance of legal representation for success in U.S. asylum proceedings.[22] Additionally, an UASC’s chance of gaining asylum could be impacted by the risk that he/she may not be able to clearly articulate subjective fear and relevant experiences,[23] and where adjudicators are unfamiliar with forms and manifestations of persecution experienced by children (i.e. under-age recruitment, trafficking, sexual exploitation, female genital mutilation, forced marriage and persecution of kin) and fail to handle children’s claims in an age-sensitive manner.[24]

If attempts are made to advocate for a right to free legal counsel for UASC seeking asylum in the United States, it may be valuable to keep abreast of developments in Europe regarding the proposed recast (a consolidated legislative enactment, which incorporates existing and additional amendments)[25] of the Council Directive on Minimum Standard on Procedures in Members States for Granting and Withdrawing Refugee Status.[26] In its proposed Article 21(4), the recast states that subject to limited exceptions, “unaccompanied minors shall be granted free legal assistance with respect to all procedures provided for in this directive.”[27] In light of the magnitude of migration of UASC into Europe, if and when this recast becomes operative,[28] it arguably has the capacity to significantly influence consensus in State practice, which in turn may be of persuasive value in influencing reform in the United States.

At present, it should be noted that some European countries provide legal representation to UASC in asylum proceedings in certain circumstances. For example, in Denmark, there are strict rules for unaccompanied minors in appeals proceedings. In addition to the general right to have counsel appointed by the Refugee Appeals Board, Denmark provides all unaccompanied minors with counsel in cases where the Danish Immigration Service does not deem the case appropriate for a hearing in front of the Refugee Appeals Board.[29] “If the Danish Immigration Service submits a case concerning a residence permit under section 7 for a child falling within subsection (1) to the Danish Refugee Council... the Danish Immigration Service shall at the same time assign counsel to the child unless the child has itself retained one.”[30] A Section 7 residence permit is essentially the grounds to claim refugee status, subsection 1 outlines the definition of an unaccompanied minor, and the Danish Refugee Council reporting only occurs when immigration officials deem the case unsuitable for the Refugee Appeals Board. So, in addition to being represented in front of the Appeals Board, unaccompanied minors have a right to legal counsel even if their case is denied a hearing in front of that board.[31]

Other countries also have general requirements regarding free legal counsel or legal aid that often cover UASC in asylum proceedings.[32] For example, in the United Kingdom, means-tested, publicly-funded legal aid is available to asylum seekers who qualify.[33] Outside Europe, both New Zealand and Canada have legal aid schemes which cover UASC. In New Zealand, for example, all refugee status determinations, including all applicable appeals, are eligible for legal aid under part 2, section 7, of the Legal Services Act 2000.[34] Guideline 3 on Child Refugee Claimants issued by the Canadian Immigration and Refugee Board, provides that the Immigration Act (now the Immigration and Refugee Protection Act) requires the designation of a representative for all child claimants.[35] One duty imposed on designated representatives relates to the retention of counsel,[36] and federally-funded legal aid is available to retain counsel.[37]

If advocates decide to campaign for a right to free legal counsel for UASC seeking asylum, given the shared common law heritage between the United Kingdom, Canada, New Zealand and the United States, consideration should be given to undertaking additional research on the provision of legal aid to UASC in asylum proceedings in these countries to determine whether lessons from these countries may lend assistance to advocacy in the United States. Additionally, case law research should be undertaken in applicable countries to determine whether national and regional courts have made persuasive pronouncements regarding the importance of counsel for children and particularly UASC in asylum proceedings.

[1] Committee on the Rights of the Child, General Comment No. 6, paragraph 21.

[4]See Committee on the Rights of the Child, General Comment No. 6, at paragraph 3 (stating “The issuing of the general comment is further motivated by the Committee’s identification of a number of protection gaps in the treatment of such children, including the following: unaccompanied and separated children face greater risks of, inter alia, sexual exploitation and abuse, military recruitment, child labour (including for their foster families) and detention. They are often discriminated against and denied access to food, shelter, housing, health services and education. Unaccompanied and separated girls are at particular risk of gender-based violence, including domestic violence. In some situations, such children have no access to proper and appropriate identification, registration, age assessment, documentation, family tracing, guardianship systems or legal advice. In many countries, unaccompanied and separated children are routinely denied entry to or detained by border or immigration officials. In other cases they are admitted but are denied access to asylum procedures or their asylum claims are not handled in an age and gender-sensitive manner. Some countries prohibit separated children who are recognized as refugees from applying for family reunification; others permit reunification but impose conditions so restrictive as to make it virtually impossible to achieve. Many such children are granted only temporary status, which ends when they turn 18, and there are few effective return programmes.”)

[5]See Committee on the Rights of the Child, General Comment No. 6, at paragraph 39.

[6] Article 20(1) is interpreted together with Article 18(2). Article 18(2) of the CRC states that “[f]or the purpose of guaranteeing and promoting the rights set forth in the present Convention, States Parties shall render appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities and shall ensure the development of institutions, facilities and services for the care of children.

[12] Despite the primarily implicit nature of this argument, in paragraph 72 of its General Comment No. 6, the Committee explicitly refers to fairness in refugee status determination procedures for UASC. Additionally, the Committee’s reasons for issuing General Comment No. 6 were at least partially motivated by gaps in protection experienced by UASC. See Committee on the Rights of the Child, General Comment No. 6, paragraph 3, which states that the “issuing of the general comment is further motivated by the Committee’s identification of a number of protection gaps in the treatment of [UASC] children, including the following: unaccompanied and separated children face greater risks of, inter alia, sexual exploitation and abuse, military recruitment, child labour (including for their foster families) and detention…. In some situations, such children have no access to proper and appropriate identification, registration, age assessment, documentation, family tracing, guardianship systems or legal advice. In many countries, unaccompanied and separated children are routinely denied entry to or detained by border or immigration officials….” See also, Committee on the Rights of the Child, General Comment No. 6, at paragraph 1.

[13] United Nations High Commissioner for Refugees, Guidelines on Child Asylum Claims, at paragraphs 65 and 69.

[14] Committee on the Rights of the Child, General Comment No. 6, at paragraph 79.

[15] Report of the Committee on the Rights of the Child, Sixty-third Session, Supp. 41, at 55, footnote a.

[23]See generally, Immigration and Refugee Board of Canada, Guideline 3: Child Refugee Claimants Procedural and Evidentiary Issues, available at http://www.irb.gc.ca/eng/brdcom/references/pol/guidir/pages/ChiEnf.aspx (last accessed December 8, 2010); The Committee on the Rights of the Child, General Comment No. 6, at paragraph 66; See e.g. United Nations High Commissioner for Refugees, Guidelines on Child Asylum Claims, at paragraph 11; United Nations High Commissioner for Refugees, Guidelines on Unaccompanied Children Seeking Asylum, at paragraph 8.6.

[24]See generally Executive Committee, Conclusion on Children at Risk; United Nations High Commissioner for Refugees, Guidelines on Child Asylum Claims; The Committee on the Rights of the Child, General Comment No. 6, at paragraphs 3, 59 and 74.

[25] Recasting is like codification in that is brings together in a single new legislative act all the amendments made to it. The new act passes through the full legislative process and repeals all the acts being recast. But unlike codification, recasting involves new substantive changes, as amendments are made to the original act during preparation of the recast text. See http://ec.europa.eu/dgs/legal_service/recasting_en.htm (last accessed December 8, 2010)

[28] As a consequence of the entry into force of the Treaty of Lisbon on 1 December 2009, the European Parliament and the European Council will have to decide on proposals presented by the Commission (such as the recast proposal on granting and withdrawing asylum status discussed above), on the basis of Treaties, before that date and that are at different stages of the legislative process. As of August 2010, the recast proposal is awaiting a parliamentary decisions/first parliamentary reading; See http://www.europarl.europa.eu/oeil/FindByProcnum.do?lang=2&procnum=COD/2009/0165. This link will continue to be updated as the recast moves through the relevant legislative process.

D. FREE LEGAL COUNSEL FOR CHILDREN DEPRIVED OF LIBERTY

In Article 37(d), the CRC explicitly addresses the right to counsel for all children, including UASC, who are deprived of liberty.

Article 37(d): Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.

The Committee elaborates that the right to “prompt access to legal and other appropriate assistance” is a right to prompt and free access, and that children should have the opportunity to make regular contact with, and receive visits from, legal counsel.

GC6: Paragraph 63: …In order to effectively secure the rights provided by article 37(d) of the Convention, unaccompanied or separated children deprived of their liberty shall be provided with prompt and free access to legal and other appropriate assistance, including the assignment of a legal representative.

GC6: Paragraph 63: …Children should have the opportunity to make regular contact and receive visits from… legal counsel and their guardian….

As to the definition of “deprivation of liberty” the Committee notes “that the rights of a child deprived of his/her liberty, as recognized in the Convention, apply with respect to children in conflict with the law, and to children placed in institutions for the purposes of care, protection or treatment, including… child protection or immigration institutions.”[1]

[1] Report of the Committee on the Rights of the Child, Sixty-third Session, Supp. 41, at 55, footnote a.

C. NON-DISCRIMINATION, BEST INTERESTS OF THE CHILD, AND SPECIAL PROTECTION AND ASSISTANCE

This subsection introduces the principles of non-discrimination and best interests of the child. These represent two of four fundamental principles which underlie the Convention.[1] This subsection also examines Article 20(1) of the CRC, which states that children temporarily or permanently deprived of their family environment are entitled to special protection and assistance provided by the State. The manner in which these principles may prove valuable for attempts to advocate for a right to free legal counsel for all UASC in immigration proceedings are discussed in section III.

1. Non-discrimination

Pursuant to Article 2 of the CRC, States Parties to the Convention are required to respect and ensure the rights set forth in the Convention to each child within its jurisdiction and subject to its territory without discrimination of any kind, including on the basis of the child’s status.[2]

Article 2(1): States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.

In its interpretative guidance, the Committee notes that the principle of non-discrimination applies in all dealings with UASC and does not prevent, and may indeed call for, affirmative action and differentiation on the basis of protection needs.

GC6: Paragraph 18: The principle of non-discrimination, in all its facets, applies in respect to all dealings with separated and unaccompanied children. In particular, it prohibits any discrimination on the basis of the status of a child being unaccompanied or separated, or as being a refugee, asylum-seeker or migrant. This principle, when properly understood, does not prevent, but may indeed call for, differentiation on the basis of different protection needs such as those deriving from age and/or gender….[3]

A plethora of other international instruments including the Universal Declaration of Human Rights,[4] the United Nations Charter[5] and the International Covenant on Civil and Political Rights[6] also articulate the prohibition against discrimination.[7] Similarly, the notion that States may be required to undertake affirmative action in order to protect the rights of various vulnerable populations is also common to other international treaties.[8]

Many regional treaties also articulate the prohibition against discrimination including, most notably, the American Convention on Human Rights.[9] While the United States has signed this treaty, it has yet to proceed with ratification.[10]

2. Best Interests of the Child

Similar to Article 2 on non-discrimination, Article 3(1) of the Convention, sets out a pivotal standard, which underpins all other rights articulated in the Convention. Article 3(1) provides that in all actions concerning children, the best interests of the child shall be a primary consideration.

Article 3(1): In all actions concerning children, whether undertaken by a public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

According to the Committee, as regards displaced children, the principle of the best interests of the child must be respected throughout the displacement cycle with the ultimate aim that any durable solution addresses the protection needs of UASC.

GC6: Paragraph 19: …In the case of a displaced child, the principle must be respected during all stages of the displacement cycle….

GC6: Paragraph 79: The ultimate aim in addressing the fate of unaccompanied or separated children is to identify a durable solution that addresses all their protection needs….

The CRC does not provide a definition of best interests. The Committee states that the concept does require a clear and comprehensive assessment of the child’s particular vulnerabilities and protection needs and that in order to conduct this initial assessment a child should be given access to the State’s territory.[11]

GC6: Paragraph 20: A determination of what is in the best interests of the child requires a clear and comprehensive assessment of the child’s identity, including her or his nationality, upbringing, ethnic, cultural and linguistic background, particular vulnerabilities and protection needs. Consequently, allowing the child access to territory is a prerequisite to this initial assessment process. The assessment process should be carried out in a friendly and safe atmosphere by qualified professionals who are trained in age and gender-sensitive interviewing techniques.

While it is clear that the best interests concept is indeterminate, the Committee also notes that key procedural safeguards must be implemented in order to ensure respect for the best interests of an UASC; this includes the provision of a legal representative in addition to a guardian where a child is referred to asylum, administrative or judicial proceedings.

GC6 Paragraph 21: …[T]he appointment of a competent guardian as expeditiously as possible serves as a key procedural safeguard to ensure respect for the best interests of an unaccompanied and separated child. Therefore such a child should only be referred to asylum or other procedures after the appointment of a guardian. In cases where separated or unaccompanied children are referred to asylum procedures or other administrative or judicial proceedings, they should also be provided with a legal representative in addition to a guardian.

Including the reference in Article 3, the best interests standard is invoked eight times in the Convention in seven articles.[12] Regional instruments also endorse the best interests principle as a primary consideration in actions concerning children[13] while the Conclusion on Children at Risk recognizes that strategies and actions under it should be underpinned by, inter alia, the best interests principle.[14] The standard is also a familiar concept in U.S. family law.

3. Special Protection and Assistance

Article 20(1) of the CRC, addresses the situation of children who are temporarily or permanently deprived of their family environment and states that such children are entitled to special protection and assistance provided by the State. In this respect, UASC would be entitled to the protection afforded under this article.

Article 20(1): A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State.

The Committee clearly states that UASC fall within the protection afforded under Article 20(1).

GC6: Paragraph 39: Unaccompanied or separated children are children temporarily or permanently deprived of their family environment and, as such, are beneficiaries of States’ obligations under article 20 of the Convention and shall be entitled to special protection and assistance provided by the relevant State.

In interpreting Articles 18(2) and 20(1), the Committee notes that States are required to undertake necessary measures to secure the proper representation of UASC’s best interests. According to the Committee, necessary measures include the provision of legal representation where children are involved in asylum, administrative or judicial proceedings.

GC6: Paragraph 33: States are required to create the underlying legal framework and to take necessary measures to secure proper representation of an unaccompanied or separated child’s best interests.…

GC6: Paragraph 36: In cases where children are involved in asylum procedures or administrative or judicial proceedings, they should, in addition to the appointment of a guardian, be provided with legal representation.

[1] The Committee has identified the following Articles of the CRC as general principles for its implementation: Article 2 (non-discrimination), Article 3(1) (best interests), Article 6 (right to life and survival and development) and Article 12 (right to express views and be heard). See Committee on the Rights of the Child, General Comment No. 5 (2003): General Measures of Implementation for the Convention on the Rights of the Child, at paragraph 12. Seealso Committee on the Rights of the Child, General Comment No. 6.

[2] This would include for example, the obligation to respect and ensure the rights in the CRC without discrimination on the basis of a child’s immigration status.

[3] It is well established in international human rights law that not all differences in treatment constitute discrimination. Generally, the concept of differentiation in human rights law permits differences in treatment if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate.

[6] International Covenant on Civil and Political Rights, at Article 2.

[7] The Conclusion on Children at Risk indicates that strategies and actions to strengthen protection of children at heightened risk should be underpinned by fundamental principles. This includes ensuring the non-discriminatory enjoyment of rights and each child’s right to life. See Executive Committee, Conclusion on Children at Risk, at paragraph (b).

[8]See e.g. Convention on the Elimination of Discrimination Against Women, Article 4.

[11] UNHCR’s Guidelines on Unaccompanied Children Seeking Asylum also confirm that an unaccompanied child seeking asylum should not be refused access to the territory. At paragraph 4.1, it states the following: “Because of his/her vulnerability, an unaccompanied child seeking asylum should not be refused access to the territory and his/her claim should always be considered under the normal refugee determination procedure.”

B. THE CONVENTION ON THE RIGHTS OF THE CHILD AND THE UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES

As a preliminary matter, a brief introduction to the Convention on the Rights of the Child, the Committee on the Rights of the Child, the United Nations High Commissioner for Refugees and the Executive Committee of the United Nations High Commissioner for Refugees is provided. This treaty and bodies speak to the rights of UASC.

1. The Convention on the Rights of the Child

The Convention on the Rights of the Child (“CRC” or “Convention”) is the paramount international human rights treaty dedicated to the rights of children. Every nation except two has ratified the CRC; the United States and Somalia have, however, signed the treaty,[1] and as a consequence, are obliged under international law to act in a manner consistent with the treaty’s object and purpose.[2] In the very least, advocates can use the CRC for its persuasive value before policymakers and judges in the United States. If and when the Unites States ratifies and implements the CRC, advocates will then be able to argue that its provisions are binding in the Unites States. That would also be the case if a determination is made that some or all of the CRC’s provisions have become customary international law.

§ The Committee on the Rights of the Child: General Comment No. 6 on Treatment of Unaccompanied and Separated Children Outside Their Country of Origin (2005);

§ The United Nations High Commissioner for Refugees’ Executive Committee Conclusion No. 107 on Children at Risk (2007);

§ The United Nations High Commissioner for Refugees’ Guidelines on Child Asylum Claims Under Articles 1(A)(2) and 1(F) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees (2009); and

§ The United Nations High Commissioner for Refugees’ Guidelines on Policies and Procedures in Dealing with Unaccompanied Children Seeking Asylum (1997).

Where relevant, references are also made to regional human rights law.

§ The Committee on the Rights of the Child: General Comment No. 6 on Treatment of Unaccompanied and Separated Children Outside Their Country of Origin (2005);

§ The United Nations High Commissioner for Refugees’ Executive Committee Conclusion No. 107 on Children at Risk (2007);

§ The United Nations High Commissioner for Refugees’ Guidelines on Child Asylum Claims Under Articles 1(A)(2) and 1(F) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees (2009); and

§ The United Nations High Commissioner for Refugees’ Guidelines on Policies and Procedures in Dealing with Unaccompanied Children Seeking Asylum (1997).

Where relevant, references are also made to regional human rights law.

§ The Committee on the Rights of the Child: General Comment No. 6 on Treatment of Unaccompanied and Separated Children Outside Their Country of Origin (2005);

§ The United Nations High Commissioner for Refugees’ Executive Committee Conclusion No. 107 on Children at Risk (2007);

§ The United Nations High Commissioner for Refugees’ Guidelines on Child Asylum Claims Under Articles 1(A)(2) and 1(F) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees (2009); and

§ The United Nations High Commissioner for Refugees’ Guidelines on Policies and Procedures in Dealing with Unaccompanied Children Seeking Asylum (1997).

Where relevant, references are also made to regional human rights law.

B. The Convention on the Rights of the child and the United Nations High Commisioner for Refugees

As a preliminary matter, a brief introduction to the Convention on the Rights of the Child, the Committee on the Rights of the Child, the United Nations High Commissioner for Refugees and the Executive Committee of the United Nations High Commissioner for Refugees is provided. This treaty and bodies speak to the rights of UASC.

1. The Convention on the Rights of the Child

The Convention on the Rights of the Child (“CRC” or “Convention”) is the paramount international human rights treaty dedicated to the rights of children. Every nation except two has ratified the CRC; the United States and Somalia have, however, signed the treaty,[1] and as a consequence, are obliged under international law to act in a manner consistent with the treaty’s object and purpose.[2] In the very least, advocates can use the CRC for its persuasive value before policymakers and judges in the United States. If and when the Unites States ratifies and implements the CRC, advocates will then be able to argue that its provisions are binding in the Unites States. That would also be the case if a determination is made that some or all of the CRC’s provisions have become customary international law.

2. The Committee on the Rights of the Child and General Comment 6

The Committee on the Rights of the Child (the “Committee”) is a body of independent experts mandated pursuant to Article 43 of the CRC to measure State Party compliance and progress with obligations under the CRC. Progress and compliance is generally measured through a reporting mechanism intended to engender dialogue between the Committee and State Parties.[3] In an attempt to improve implementation of the CRC, the Committee publishes interpretative guidance in the form of ‘General Comments’ to enhance State understanding of the CRC’s provisions and to highlight thematic concerns. The Committee’s General Comments are based on the experience gained through examination of State Party reports. While not strictly binding on States Parties, the Committee’s pronouncements are regarded as authoritative.[4]

The Committee’s General Comment No. 6 on the Treatment of Unaccompanied and Separated Children Outside Their Country of Origin (“GC6”) is of particular relevance to the subject of this memorandum. This comment was issued in order to “draw attention to the particularly vulnerable situation of unaccompanied and separated children…”[5] and to “provide guidance on the protection, care and proper treatment of unaccompanied and separated children based on the entire legal framework provided by the Convention on the Rights of the Child…”[6]

3. The United Nations High Commissioner for Refugees and its Executive Committee

The United Nations High Commissioner for Refugees (“UNHCR”), a body established by the United Nations General Assembly, is mandated to lead and coordinate international action to protect refugees and resolve refugee problems worldwide. To this end, its primary purpose is to safeguard the rights of refugees. Pursuant to its mandate, UNHCR issues guidelines on various facets of international protection of asylum seekers and refugees. The Guidelines on Child Asylum Claims Under Articles 1(A)(2) and 1(F) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees (“Guidelines on Child Asylum Claims”) are intended to provide legal interpretative guidance for, inter alia, governments, legal practitioners, decision makers and the judiciary on carrying out asylum determinations.[7] The Guidelines on Policies and Procedures in Dealing with Unaccompanied Children Seeking Asylum (“Guidelines on Unaccompanied Children Seeking Asylum”) are intended to, inter alia, promote awareness of the special needs of unaccompanied children and the rights reflected in the CRC.[8] UNHCR’s guidelines have been regarded to be of persuasive value in U.S. case law.[9]

The Executive Committee (“ExCom”) of the High Commissioner’s Programme,[10] the governing body of the UNHCR adopts conclusions on international protection, which contribute to the development of international refugee law. ExCom has adopted Conclusion No. 107 on Children at Risk (“Conclusion on Children at Risk”) which is aimed at strengthening the protection of children at risk.[11] Factors that put children in situations of heightened risk include individual risk factors such as being unaccompanied or separated,[12] and wider environmental risk factors such as lack of access to child-sensitive asylum procedures.[13] The Conclusion on Children at Risk provides operational guidance to States, UNHCR, and other relevant agencies and partners on the protection of children affected by forced displacement and statelessness and outlines the main aspects of a comprehensive child protection system.[14]

C. Non-discrimination, Best Interests of the Child, and Special Protection and Assistance

This subsection introduces the principles of non-discrimination and best interests of the child. These represent two of four fundamental principles which underlie the Convention.[15] This subsection also examines Article 20(1) of the CRC, which states that children temporarily or permanently deprived of their family environment are entitled to special protection and assistance provided by the State. The manner in which these principles may prove valuable for attempts to advocate for a right to free legal counsel for all UASC in immigration proceedings are discussed in section III.

1. Non-discrimination

Pursuant to Article 2 of the CRC, States Parties to the Convention are required to respect and ensure the rights set forth in the Convention to each child within its jurisdiction and subject to its territory without discrimination of any kind, including on the basis of the child’s status.[16]

Article 2(1): States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.

In its interpretative guidance, the Committee notes that the principle of non-discrimination applies in all dealings with UASC and does not prevent, and may indeed call for, affirmative action and differentiation on the basis of protection needs.

GC6: Paragraph 18: The principle of non-discrimination, in all its facets, applies in respect to all dealings with separated and unaccompanied children. In particular, it prohibits any discrimination on the basis of the status of a child being unaccompanied or separated, or as being a refugee, asylum-seeker or migrant. This principle, when properly understood, does not prevent, but may indeed call for, differentiation on the basis of different protection needs such as those deriving from age and/or gender….[17]

A plethora of other international instruments including the Universal Declaration of Human Rights,[18] the United Nations Charter[19] and the International Covenant on Civil and Political Rights[20] also articulate the prohibition against discrimination.[21] Similarly, the notion that States may be required to undertake affirmative action in order to protect the rights of various vulnerable populations is also common to other international treaties.[22]

Many regional treaties also articulate the prohibition against discrimination including, most notably, the American Convention on Human Rights.[23] While the United States has signed this treaty, it has yet to proceed with ratification.[24]

2. Best Interests of the Child

Similar to Article 2 on non-discrimination, Article 3(1) of the Convention, sets out a pivotal standard, which underpins all other rights articulated in the Convention. Article 3(1) provides that in all actions concerning children, the best interests of the child shall be a primary consideration.

Article 3(1): In all actions concerning children, whether undertaken by a public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

According to the Committee, as regards displaced children, the principle of the best interests of the child must be respected throughout the displacement cycle with the ultimate aim that any durable solution addresses the protection needs of UASC.

GC6: Paragraph 19: …In the case of a displaced child, the principle must be respected during all stages of the displacement cycle….

GC6: Paragraph 79: The ultimate aim in addressing the fate of unaccompanied or separated children is to identify a durable solution that addresses all their protection needs….

The CRC does not provide a definition of best interests. The Committee states that the concept does require a clear and comprehensive assessment of the child’s particular vulnerabilities and protection needs and that in order to conduct this initial assessment a child should be given access to the State’s territory.[25]

GC6: Paragraph 20: A determination of what is in the best interests of the child requires a clear and comprehensive assessment of the child’s identity, including her or his nationality, upbringing, ethnic, cultural and linguistic background, particular vulnerabilities and protection needs. Consequently, allowing the child access to territory is a prerequisite to this initial assessment process. The assessment process should be carried out in a friendly and safe atmosphere by qualified professionals who are trained in age and gender-sensitive interviewing techniques.

While it is clear that the best interests concept is indeterminate, the Committee also notes that key procedural safeguards must be implemented in order to ensure respect for the best interests of an UASC; this includes the provision of a legal representative in addition to a guardian where a child is referred to asylum, administrative or judicial proceedings.

GC6 Paragraph 21: …[T]he appointment of a competent guardian as expeditiously as possible serves as a key procedural safeguard to ensure respect for the best interests of an unaccompanied and separated child. Therefore such a child should only be referred to asylum or other procedures after the appointment of a guardian. In cases where separated or unaccompanied children are referred to asylum procedures or other administrative or judicial proceedings, they should also be provided with a legal representative in addition to a guardian.

Including the reference in Article 3, the best interests standard is invoked eight times in the Convention in seven articles.[26] Regional instruments also endorse the best interests principle as a primary consideration in actions concerning children[27] while the Conclusion on Children at Risk recognizes that strategies and actions under it should be underpinned by, inter alia, the best interests principle.[28] The standard is also a familiar concept in U.S. family law.

3. Special Protection and Assistance

Article 20(1) of the CRC, addresses the situation of children who are temporarily or permanently deprived of their family environment and states that such children are entitled to special protection and assistance provided by the State. In this respect, UASC would be entitled to the protection afforded under this article.

Article 20(1): A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State.

The Committee clearly states that UASC fall within the protection afforded under Article 20(1).

GC6: Paragraph 39: Unaccompanied or separated children are children temporarily or permanently deprived of their family environment and, as such, are beneficiaries of States’ obligations under article 20 of the Convention and shall be entitled to special protection and assistance provided by the relevant State.

In interpreting Articles 18(2) and 20(1), the Committee notes that States are required to undertake necessary measures to secure the proper representation of UASC’s best interests. According to the Committee, necessary measures include the provision of legal representation where children are involved in asylum, administrative or judicial proceedings.

GC6: Paragraph 33: States are required to create the underlying legal framework and to take necessary measures to secure proper representation of an unaccompanied or separated child’s best interests.…

GC6: Paragraph 36: In cases where children are involved in asylum procedures or administrative or judicial proceedings, they should, in addition to the appointment of a guardian, be provided with legal representation.

D. Free Legal Counsel for Children Deprived of Liberty

In Article 37(d), the CRC explicitly addresses the right to counsel for all children, including UASC, who are deprived of liberty.

Article 37(d): Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.

The Committee elaborates that the right to “prompt access to legal and other appropriate assistance” is a right to prompt and free access, and that children should have the opportunity to make regular contact with, and receive visits from, legal counsel.

GC6: Paragraph 63: …In order to effectively secure the rights provided by article 37(d) of the Convention, unaccompanied or separated children deprived of their liberty shall be provided with prompt and free access to legal and other appropriate assistance, including the assignment of a legal representative.

GC6: Paragraph 63: …Children should have the opportunity to make regular contact and receive visits from… legal counsel and their guardian….

As to the definition of “deprivation of liberty” the Committee notes “that the rights of a child deprived of his/her liberty, as recognized in the Convention, apply with respect to children in conflict with the law, and to children placed in institutions for the purposes of care, protection or treatment, including… child protection or immigration institutions.”[29]

E. Free Legal Counsel for Asylum Seeking Children

The CRC also imposes obligations on States Parties with regards to asylum seeking children. In particular, the CRC requires States to ensure that such children receive appropriate protection in the enjoyment of applicable rights set forth in the Convention and in other international human rights and humanitarian instruments to which the State is a party.

Article 22(1): States Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rightsset forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties.

The Committee elaborates, noting that where UASC are referred to asylum procedures or other administrative or judicial proceedings, appropriate measures include providing such children with a legal representative. According to the Committee, refugee status applications of UASC seeking asylum must be given priority and should be determined promptly and fairly.

GC6: Paragraph 21: …In cases where separated or unaccompanied children are referred to asylum procedures or other administrative or judicial proceedings, they should also be provided with a legal representative in addition to a guardian. (emphasis added)

GC6: Paragraph 36: In cases where children are involved in asylum procedures or administrative or judicial proceedings, they should, in addition to the appointment of a guardian, be provided with legal representation. (emphasis added)

GC6: Paragraph 68: Appropriate measures required under article 22(1) of the Convention must take into account the particular vulnerabilities of unaccompanied and separated children. Such measures should be guided by the considerations set out below.

GC6: Paragraph 69: …The unaccompanied or separated child should also, in all cases, be given access, free of charge, to a qualified legal representative, including where the application for refugee status is processed under the normal procedures for adults. (emphasis added)

GC6: Paragraph 70: Refugee status applications filed by unaccompanied and separated children shall be given priority and every effort should be made to render a decision promptly and fairly. (emphasis added)

GC6: Paragraph 72: …The guardian and the legal representative should be present during all interviews.

In its recent Guidelines on Child Asylum Claims, UNHCR notes that due to their young age, dependency and relative immaturity, children should enjoy specific procedural safeguards to ensure that fair refugee status determination decisions are reached with respect to their claims. According to UNHCR, minimum standards include an entitlement, arguably free of charge, to a legal representative where children are principal applicants in asylum procedures.

Paragraph 65: Due to their young age, dependency and relative immaturity, children should enjoy specific procedural and evidentiary safeguards to ensure that fair refugee status determination decisions are reached with respect to their claims.[30] The general measures outlined below set out minimum standards for the treatment of children during the asylum procedure.

Paragraph 69: An independent, qualified guardian needs to be appointed immediately, free of charge in the case of unaccompanied and separated children. Children who are the principal applicants in an asylum procedure are also entitled to a legal representative.[31] Such representatives should be properly trained and should support the child throughout the procedure.

These guidelines also state that a child sensitive application of the refugee definition would be consistent with the CRC and that the principles of non-discrimination and best interests of the child (discussed in subsection C above) “inform both the substantive and the procedural aspects of the determination of a child’s application for refugee status.”[32]

As part of its operational guidance to States and other entities, the Conclusion on Children at Risk identifies “components that may form part of a comprehensive child protection system, with the aim of strengthening the protection of children at risk”.[33] In this regard, the Conclusion states that the best interests of the child shall be a primary consideration in all actions concerning children.[34] It also recommends that States and other relevant agencies act to prevent children being put at heightened risk by providing qualified free legal representation for UASC.[35]

The UNHCR’s Guidelines on Unaccompanied Children Seeking Asylum provides that upon arrival, a child should be provided with a legal representative and states that claims from unaccompanied children should be examined in a fair manner.

Paragraph 4.2: Upon arrival, a child should be provided with a legal representative. The claims of unaccompanied children should be examined in a manner which is both fair and age-appropriate.

[3] All States Parties are obliged to submit regular reports to the Committee on how the rights in the CRC are being implemented. States must report initially two years after acceding to the Convention and then every five years. The Committee examines each report and addresses its concerns and recommendations to State Parties in the form of “concluding observations”. For information on the Committee, see http://www2.ohchr.org/english/bodies/crc/ (last accessed on December 6, 2010). See also Mieke Verheyde and Geert Goedertier, A Commentary on the United Nations Convention on the Rights of the Child, Article 43-45: The UN Committee on the Rights of the Child, (Martinus Nijhoff Publishers, 2006).

[4]See e.g. Mieke Verheyde and Geert Goedertier, A Commentary on the United Nations Convention on the Rights of the Child, Article 43-45: The UN Committee on the Rights of the Child, (Martinus Nijhoff Publishers, 2006), at 38-41.

[5] Committee on the Rights of the Child, General Comment No. 6, at paragraph 1.

[7] United Nations High Commissioner for Refugees, Guidelines on Child Asylum Claims Under Articles 1(A)(2) and 1(F) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees (Guidelines on Child Asylum Claims), at cover page.

[8] United Nations High Commissioner for Refugees, Guidelines on Policies and Procedures in Dealing with Unaccompanied Children Seeking Asylum (Guidelines on Unaccompanied Children Seeking Asylum), at paragraph 1.3.

[9]SeeImmigration and Naturalization Service v. Cardoza-Fonseca, 480 U.S. 421, 439 n.22 (1987) (“[T]he Handbook provides significant guidance in construing the Protocol, to which Congress sought to conform. It has been widely considered useful in giving content to the obligations that the Protocol establishes.”

[10] The UN Economic and Social Council established this body in 1958 and it formally came into existence on January 1, 1959. The Executive Committee is currently composed of 79 member States, which includes the United States. For information on the Executive Committee, see http://www.unhcr.org/pages/49c3646c83.html (last accessed December 6, 2010).

[11]See Executive Committee, Conclusion No. 107 (LVIII) – 2007 on Children at Risk (Conclusion on Children at Risk), at paragraph (a).

[15] The Committee has identified the following Articles of the CRC as general principles for its implementation: Article 2 (non-discrimination), Article 3(1) (best interests), Article 6 (right to life and survival and development) and Article 12 (right to express views and be heard). See Committee on the Rights of the Child, General Comment No. 5 (2003): General Measures of Implementation for the Convention on the Rights of the Child, at paragraph 12. Seealso Committee on the Rights of the Child, General Comment No. 6.

[16] This would include for example, the obligation to respect and ensure the rights in the CRC without discrimination on the basis of a child’s immigration status.

[17] It is well established in international human rights law that not all differences in treatment constitute discrimination. Generally, the concept of differentiation in human rights law permits differences in treatment if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate.

[20] International Covenant on Civil and Political Rights, at Article 2.

[21] The Conclusion on Children at Risk indicates that strategies and actions to strengthen protection of children at heightened risk should be underpinned by fundamental principles. This includes ensuring the non-discriminatory enjoyment of rights and each child’s right to life. See Executive Committee, Conclusion on Children at Risk, at paragraph (b).

[22]See e.g. Convention on the Elimination of Discrimination Against Women, Article 4.

[25] UNHCR’s Guidelines on Unaccompanied Children Seeking Asylum also confirm that an unaccompanied child seeking asylum should not be refused access to the territory. At paragraph 4.1, it states the following: “Because of his/her vulnerability, an unaccompanied child seeking asylum should not be refused access to the territory and his/her claim should always be considered under the normal refugee determination procedure.”

[27]See e.g. Charter of Fundamental Rights of the European Union, Article 24(2) and African Charter on the Rights and Welfare of the Child, at Article 4(1).

[28]See Executive Committee, Conclusion on Children at Risk, at paragraph (b)(v):

[29] Report of the Committee on the Rights of the Child, Sixty-third Session, Supp. 41, at 55, footnote a.

[30] “The relevant applicable age for children to benefit from the additional procedural safeguards elaborated in this section is the date the child seeks asylum and not the date a decision is reached…” United Nations High Commissioner for Refugees, Guidelines on Child Asylum Claims, at paragraph 65, footnote 129.

[31] “…Legal representative” refers to a lawyer or other person qualified to provide legal assistance to, and inform, the child in the asylum proceedings and in relation to contacts with authorities on legal matters…” United Nations High Commissioner for Refugees, Guidelines on Child Asylum Claims, at paragraph 69, footnote 135.

[32] United Nations High Commissioner for Refugees, Guidelines on Child Asylum Claims, at paragraph 5.

[33] Executive Committee, Conclusion on Children at Risk, at paragraph a.

B. STRUCTURE

Section II of this memorandum introduces excerpts from international law and commentary directly or indirectly applicable to the provision of free legal counsel for unaccompanied and separated children in civil proceedings. This serves as background to the discussion in Section III on how the identified law and commentary could be utilized to support attempts to promote a right to free legal counsel for unaccompanied and separated children navigating immigration proceedings in the United States.

C. DEFINITIONS

For the purpose of this memorandum, the following definitions apply:

§ Child: Every human being below the age of 18 years, unless under the law applicable to the child, majority is attained earlier.[1]

§ Unaccompanied children: Children (as defined above) who have been separated from both parents and other relatives and are not being cared for by an adult who, by law or custom, is responsible for doing so.[2]

§ Separated children: Children (as defined above) who have been separated from both parents, or from their previous legal or customary primary caregiver, but not necessarily from other relatives. Accordingly separated children may include children accompanied by other adult family members.[3]

§ Unaccompanied and separated children/child (“UASC”): This definition encapsulates the two immediately preceding definitions in their plural and singular forms, as relevant.

A. PURPOSE

This memorandum highlights international human rights law and commentary as well as potential arguments based on this law that could be utilized by U.S.-based advocates to promote a right to free legal counsel for unaccompanied and separated children navigating domestic immigration proceedings. Where relevant, the memorandum also references regional human rights law and national policies and identifies further avenues of research for advocates.

The right to counsel for these children matters in two important ways. First, children are not competent to represent themselves in any legal proceeding, and immigration removal law and procedure is complex. Second, research has long demonstrated that respondents in immigration court are several times more likely to gain asylum if they are represented.[1] Under current U.S. law (Immigration and Nationality Act Sec. 292, 8 U.S.C. Sec. 1362), however, unaccompanied and separated children are not provided with counsel at government expense. That means that they must depend on pro bono representation. While there are major efforts underway by advocacy organizations to recruit pro bono counsel for these children,[2] a significant number of unaccompanied and separated children are not represented in their immigration removal proceedings.[3] Accordingly, advocacy organizations continue to campaign for mandated representation for this vulnerable population. International human rights law can helpfully support that campaign.

[2]See e.g. the Unaccompanied Children Program at the VERA Institute for Justice, Kids in Need of Defense (KIND), and the National Pro Bono Project for Children at the Catholic Legal Immigration Network Inc. (CLINIC).

[3] For example, based on correspondence with the VERA Institute on December 2, 2010, only 19% of the children who were admitted into ORR custody between April 1, 2006 and March 31, 2008 (and whose cases were concluded (while the child was released) at the IJ stage by June 20, 2008) were represented at some point in their removal proceedings.

This memorandum highlights international human rights law and commentary as well as potential arguments based on this law that could be utilized by U.S.-based advocates to promote a right to free legal counsel for unaccompanied and separated children navigating domestic immigration proceedings. Where relevant, the memorandum also references regional human rights law and national policies and identifies further avenues of research for advocates.

The right to counsel for these children matters in two important ways. First, children are not competent to represent themselves in any legal proceeding, and immigration removal law and procedure is complex. Second, research has long demonstrated that respondents in immigration court are several times more likely to gain asylum if they are represented.[1] Under current U.S. law (Immigration and Nationality Act Sec. 292, 8 U.S.C. Sec. 1362), however, unaccompanied and separated children are not provided with counsel at government expense. That means that they must depend on pro bono representation. While there are major efforts underway by advocacy organizations to recruit pro bono counsel for these children,[2] a significant number of unaccompanied and separated children are not represented in their immigration removal proceedings.[3] Accordingly, advocacy organizations continue to campaign for mandated representation for this vulnerable population. International human rights law can helpfully support that campaign.

B. Structure

Section II of this memorandum introduces excerpts from international law and commentary directly or indirectly applicable to the provision of free legal counsel for unaccompanied and separated children in civil proceedings. This serves as background to the discussion in Section III on how the identified law and commentary could be utilized to support attempts to promote a right to free legal counsel for unaccompanied and separated children navigating immigration proceedings in the United States.

C. Definitions

For the purpose of this memorandum, the following definitions apply:

§ Child: Every human being below the age of 18 years, unless under the law applicable to the child, majority is attained earlier.[4]

§ Unaccompanied children: Children (as defined above) who have been separated from both parents and other relatives and are not being cared for by an adult who, by law or custom, is responsible for doing so.[5]

§ Separated children: Children (as defined above) who have been separated from both parents, or from their previous legal or customary primary caregiver, but not necessarily from other relatives. Accordingly separated children may include children accompanied by other adult family members.[6]

§ Unaccompanied and separated children/child (“UASC”): This definition encapsulates the two immediately preceding definitions in their plural and singular forms, as relevant.

[2]See e.g. the Unaccompanied Children Program at the VERA Institute for Justice, Kids in Need of Defense (KIND), and the National Pro Bono Project for Children at the Catholic Legal Immigration Network Inc. (CLINIC).

[3] For example, based on correspondence with the VERA Institute on December 2, 2010, only 19% of the children who were admitted into ORR custody between April 1, 2006 and March 31, 2008 (and whose cases were concluded (while the child was released) at the IJ stage by June 20, 2008) were represented at some point in their removal proceedings.

The following resources were created as part of a partnership between CLINIC and the Institute for the Study of International Migration at Georgetown University to encourage the use of international law arguments in U.S. immigration cases:

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An ITIN permits individuals without a valid Social Security Number (SSN) to:

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